      MEMORANDUM DECISION                                                       FILED
                                                                           Apr 13 2016, 6:04 am

      Pursuant to Ind. Appellate Rule 65(D), this                               CLERK
      Memorandum Decision shall not be regarded as                          Indiana Supreme Court
                                                                               Court of Appeals
      precedent or cited before any court except for the                         and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Nicole A. Zelin                                           R. Scott Hayes
      Pritzke & Davis, LLP                                      Hayes Copenhaver Crider Harvey LLP
      Greenfield, Indiana                                       New Castle, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tim Johnson,                                             April 13, 2016

      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               33A04-1508-DR-1007
              v.                                               Appeal from the Henry Circuit
                                                               Court.
                                                               The Honorable Kit C. Dean Crane,
      Julie Johnson,                                           Judge.
      Appellee-Petitioner.                                     Cause No. 33C02-1404-DR-59




      Friedlander, Judge

[1]   Tim Johnson appeals the trial court’s distribution of marital assets between him

      and Julie Johnson. Tim claims the court’s distribution is unreasonable. Under

      the circumstances of this case, the court’s split of marital assets in favor of Julie

      is supported by statute and precedent, and we affirm.




      Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1007| April 13, 2016          Page 1 of 11
[2]   Tim and Julie married in 1998. It was a second marriage for both of them, and

      they both had children from prior relationships. Tim and Julie did not have any

      children together.


[3]   Before they married, Tim moved into Julie’s house (“the marital home”), which

      she had purchased in 1996, subject to a mortgage, during a prior marriage.

      Julie and her then-husband had made a down payment on the marital home

      using the equity from the sale of a prior house. Julie and her then-husband had

      purchased the prior house using a $10,000 gift from Julie’s parents, among

      other sources of funds. In addition, Julie later received an inheritance of

      $36,741. She used that money to expand the property on which the marital

      home was located.


[4]   Tim and Julie both brought debt to the marriage. Julie owed her prior husband

      his share of the equity in the marital home, and Tim owed his father money and

      had credit card debt. Tim and Julie paid off all of those debts during their

      marriage. They both worked outside the home. In addition, they had a joint

      bank account, and Tim managed their money. Both of them contributed to

      paying the mortgage during the marriage.


[5]   In May 2012, Tim was charged in Henry County with molesting Julie’s

      daughter. Tim and Julie separated at that time. In August 2013, prior to his

      criminal trial, Tim used marital funds to purchase a fifth-wheel trailer for

      $10,633. He hooked it up to a truck he had purchased during the marriage, put

      most of his personal items in the trailer, and left the state for Florida.


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[6]   Before he left Indiana, Tim took $1,400 out of a savings account he shared with

      Julie. He did not have her permission to make the withdrawal. In addition,

      while Tim was passing through Tennessee on his way to Florida, he accessed a

      line of credit that was secured by the marital home and withdrew $30,000

      without Julie’s knowledge or permission. Tim acknowledged he and Julie were

      jointly responsible for the line of credit, and if he could not pay, then she would

      be responsible for repaying the funds as well as making payments on their

      mortgage. Once Julie discovered Tim had drawn funds from the line of credit,

      she began to repay it while also making payments on the first mortgage. She

      expects to be able to pay off the line of credit in 2029, but she does not think she

      will be able to pay off the mortgage by herself in her lifetime.


[7]   Tim did not return to Indiana for his criminal trial and was tried in absentia.

      During this process, he was arrested in Florida. At that time, he transferred the

      titles for the truck and fifth-wheel trailer to his mother, who lived in Florida. In

      addition, Tim transferred to his daughter from a prior relationship the title for a

      camper that belonged to him and Julie.


[8]   Eventually, $18,000 of the $30,000 Tim withdrew from the line of credit was

      placed in his attorney’s trust account. Tim spent the rest on truck repairs and

      living expenses in Florida.


[9]   Julie filed a petition for dissolution while Tim’s criminal case was pending.

      The parties jointly asked the trial court to issue a decree of dissolution of their

      marriage, reserving the division of the marital estate until later. On March 12,


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       2015, the court granted the request, dissolving the marriage but deferring a

       ruling on the distribution of marital assets.


[10]   Next, the trial court held an evidentiary hearing. At the time of the hearing,

       Tim was incarcerated in the Indiana Department of Correction, serving a

       seventy-year sentence. He has a job, at which he earns twenty-five cents per

       hour or forty-three dollars per month. Some of his pay goes to pay for re-entry

       services, shoes, and some clothes. In addition, Tim would be required to

       contribute some of his pay for health care if necessary. Tim conceded he has no

       way to repay the $12,000 he spent from the $30,000 line of credit and cannot

       assist with the mortgage on the marital home.


[11]   After the hearing, the trial court issued findings of fact and conclusions thereon.

       The court determined the facts justified an unequal division of marital property.

       Among other considerations, the court noted Tim’s “transfer of the trailer, the

       Chevrolet Silverado, the pop up camper and the creation of a $30,000 debt in

       order to receive $30,000 cash, which Julie gets no benefit from, constitutes

       ample evidence of dissipation.” Appellant’s App. p. 12.


[12]   The court granted Julie the marital residence subject to all debt, her retirement

       accounts, and two older, high-mileage vehicles. The court granted Tim certain

       items of personal property, as well as the $1,400 he withdrew from the savings

       account and the $30,000 he took from the line of credit. As for the $18,000 that

       was in Tim’s attorney’s trust account, the court directed that it be used to pay

       Tim’s attorney’s fees, with any remainder to be deposited in his prison


       Court of Appeals of Indiana | Memorandum Decision 33A04-1508-DR-1007| April 13, 2016   Page 4 of 11
       commissary account. The division amounted to a sixteen percent share of the

       marital estate for Tim and an eighty-four percent share of the marital estate for

       Julie. The court concluded, “In effect, Julie is only receiving her home,

       acquired by her before her marriage, now subject to a substantially higher debt,

       her personal property, two cars that are over 10 years old with high miles, and

       the right to receive her pension and 401-K someday.” Id. at 15. This appeal

       followed.


[13]   Tim claims the trial court erred in its division of marital assets, asserting he is

       entitled to half of the marital estate rather than sixteen percent. When a trial

       court divides marital assets, it must start by presuming “an equal division of the

       marital property between the parties is just and reasonable.” Ind. Code § 31-15-

       7-5 (West, Westlaw 1997). A party may rebut the presumption that an equal

       division is just and reasonable by presenting relevant evidence concerning the

       following factors:

               (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.


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               (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.

       Id.


[14]   The division of marital assets is a matter for the trial court’s discretion, and we

       will reverse only for an abuse of discretion. In re Marriage of Perez, 7 N.E.3d

       1009 (Ind. Ct. App. 2014). We consider only the evidence most favorable to

       the trial court’s disposition of the property, without reweighing the evidence or

       assessing the credibility of witnesses. Webb v. Schleutker, 891 N.E.2d 1144 (Ind.

       Ct. App. 2008). A party challenging the trial court’s division of marital

       property must overcome a strong presumption that the court considered and

       complied with Indiana Code section 31-15-7-5. Id. That presumption is one of

       the strongest presumptions applicable to our consideration on appeal. Id.


[15]   Tim claims the trial court abused its discretion in concluding he dissipated

       marital assets, thereby justifying an unequal division of the marital estate.

       Specifically, Tim asserts that buying a trailer, withdrawing money from the line

       of credit, and moving to Florida did not amount to dissipation of marital assets.


[16]   Dissipation is the frivolous or unjustified expenditure of marital assets.

       Goodman v. Goodman, 754 N.E.2d 595 (Ind. Ct. App. 2001). Factors to consider

       in determining whether dissipation has occurred include:



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               1. Whether the expenditure benefited the marriage or was made
               for a purpose entirely unrelated to the marriage;
               2. The timing of the transaction;
               3. Whether the expenditure was excessive or de minimis; and
               4. Whether the dissipating party intended to hide, deplete, or
               divert the marital asset.
       Id.


[17]   In this case, after Tim had been criminally charged, he left his job. Tr. p. 32.

       While his criminal case was pending and he was separated from Julie, he

       purchased a fifth-wheel trailer for $10,633, hitched it to a truck he had

       purchased during the parties’ marriage, and left the state with most of his

       personal property. He also transferred the title of a pop-up camper to his

       daughter from a previous relationship. Tim took these marital assets for his

       own use without discussing the matter with Julie. When Tim was arrested in

       Florida, he signed the titles for the truck and trailer over to his mother, who

       also lived in Florida. There is no explanation as to why he could not have

       arranged to have those marital assets returned to Julie. Instead, one may

       reasonably infer Tim was attempting to keep the truck and trailer in Florida and

       out of Julie’s possession.


[18]   In addition, Tim took $1,400 from the parties’ savings and withdrew $30,000

       from a line of credit secured by the marital home. He did not consult with Julie

       about these withdrawals, much less seek her agreement. These transactions did

       not benefit the marital estate and instead amounted to a diversion of marital

       assets for Tim’s sole benefit. Even worse, Tim’s act of drawing on the line of

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       credit for his own use burdened the marital estate’s primary asset, the marital

       home, with additional debt. Tim knew that without his assistance, Julie would

       be responsible for repaying the line of credit and the mortgage on the marital

       estate, but he absconded with the funds anyway. During his time in Florida he

       had no income, stating “I was done working.” Id. at 29. Tim was only in his

       late forties at the time. He used $12,000 of the money for living expenses and

       appeared to have no intent of paying Julie back.


[19]   This evidence amply demonstrates Tim expended marital assets without

       justification, and the trial court did not abuse its discretion in concluding he

       dissipated marital assets. See Newby v. Newby, 734 N.E.2d 663 (Ind. Ct. App.

       2000) (no error in finding dissipation of marital assets where spouse converted

       funds from a joint account for personal use).


[20]   In a related argument, Tim claims the trial court’s award of the marital home

       and Julie’s retirement accounts to Julie was disproportionate to the amount of

       marital assets he dissipated. We disagree. Tim fails to note that in awarding

       the marital home to Julie, the court required her to take on all of the pending

       debt as well. Although Tim is incarcerated, the court could have assigned a

       portion of the debt to him in the event he obtained a reduction in his sentence

       or was otherwise released from prison early. Next, Tim also fails to note he has

       hindered Julie’s ability to retire by depriving the marriage of his income and by

       burdening the marital home with an additional $30,000 in debt from the line of

       credit. Julie testified she will pay off the line of credit by 2029, but she does not

       think she will be able to pay off the mortgage in her lifetime and will not be able

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       to retire. Under these circumstances, which are the result of Tim’s dissipation

       of marital assets, the trial court acted within its discretion in awarding Julie a

       far greater share of the marital estate.


[21]   Next, Tim argues the trial court gave Julie undue credit for the $10,000 gift she

       received from her parents to buy her prior house and the inheritance of $36,541,

       which she used to expand the property on which the marital home was located.

       He asserts these factors must be balanced against his payment of the mortgage

       during the marriage, his contribution to paying Julie’s prior husband for his

       share of equity in the marital home, and his work on the marital home,

       including constructing a patio and other permanent improvements.


[22]   We disagree with Tim’s view of the evidence. Viewing the facts in the light

       most favorable to the judgment, he and Julie both contributed to mortgage

       payments after they were married. Tr. p. 66. Further, Tim contributed to

       paying Julie’s prior husband, but he also brought debt to the marriage, which

       Tim and Julie paid off together. Tim did not attempt to quantify the value of

       his work on the marital home.


[23]   In addition, the factors Tim offers are further outweighed by his unilateral and

       secret decision to take out $30,000 from the line of credit, secured by the marital

       home, after separating from Julie. He burdened the marital home with

       additional debt for his own personal purposes. The trial court was entitled to

       determine that Julie’s contributions to the marital home from her parents’ gift

       and her inheritance, plus Tim’s burdening of the marital home for selfish


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       purposes, outweighed his contributions to the home. Tim’s argument amounts

       to a request to reweigh the evidence, which we cannot do. See Estudillo v.

       Estudillo, 956 N.E.2d 1084 (Ind. Ct. App. 2011) (no abuse of discretion in

       unequal division of marital assets where husband transferred marital property to

       third parties immediately prior to separating from wife and admitted he did so

       to hide assets).


[24]   In the alternative, Tim claims even if Julie was entitled to credit for the gift and

       inheritance that she used for the marital estate, the court should have awarded

       Julie only the improved equity in the residence rather than the residence and

       her retirement accounts. Tim does not cite any authority to support this

       argument, so it is waived. See McKibben v. Hughes, 23 N.E.3d 819 (Ind. Ct.

       App. 2014) (failure to support claim with citation to authority results in waiver),

       trans. denied. Waiver notwithstanding, the trial court awarded Julie the good

       with the bad: she gets the marital home, but she is solely responsible for the

       related debts, including the extra $30,000 unilaterally incurred by Tim.


[25]   Finally, Tim argues the trial court improperly considered his lengthy prison

       sentence in dividing the assets, claiming the court “sought to punish [him] for

       his criminal acts and such punishment was already dispensed to [him] in his

       criminal case.” Appellant’s Br. p. 6. We disagree. When a court considers an

       unequal division of the marital estate, Indiana Code section 31-15-7-5 requires

       the trial court to take into account “the economic circumstances of each spouse

       at the time the disposition of the property is to become effective.”



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[26]   As a result, the trial court was required to consider Tim’s incarceration and the

       resulting impact on his finances in the course of dividing the marital assets.

       Consequently, the court properly noted Tim’s living expenses would be much

       lower than Julie’s because the State is providing him with food, clothing, and

       shelter, potentially for the rest of his life. The record fails to reflect any intent

       on the part of the trial court to punish Tim for his criminal conduct. To the

       contrary, the court assigned all debt on the marital home to Julie, noting the

       court could not “in good conscience order Tim to pay anything during the next

       35 years.” Appellant’s App. p. 12. Furthermore, the court directed that the

       $18,000 in Tim’s attorney’s trust account must be used to pay Tim’s attorney’s

       fees, with any remainder to be placed in his prison commissary account.


[27]   For the foregoing reasons, we affirm the judgment of the trial court.


[28]   Judgment affirmed.


       Bradford, J., and Pyle, J., concur.




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