Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  FILED
court except for the purpose of                          Nov 01 2012, 9:09 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                    CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

ZACHARY T. ROSENBARGER                         CHRISTOPHER E. CLARK
Wuertz Law Office, LLC                         Goodin Abernathy, LLP
Indianapolis, Indiana                          Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH HAWKINS,                               )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )       No. 49A02-1203-DR-206
                                               )
DEBRA HAWKINS,                                 )
                                               )
       Appellee-Respondent.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable David J. Dreyer, Judge
                       The Honorable John J. Boyce, Commissioner
                           Cause No. 49D10-0811-DR-49769



                                    November 1, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          The parties in this case have been married to each other twice. In this ongoing

litigation concerning the distribution of marital assets following the dissolution of their

second marriage, an earlier direct appeal resulted in a remand for the purpose of

determining the value of the husband’s pension. The instant case is a direct appeal from

that remand during which the trial court not only determined the value of the husband’s

pension, but also the value of his life insurance policy, and redistributed the marital

assets.

          Appellant-respondent Kenneth Hawkins (Husband) appeals from the trial court’s

distribution of the marital assets, following the second dissolution of his marriage from

appellee-petitioner, Debra Hawkins (Wife). More particularly, Husband argues that the

unequal redistribution exceeded the remand instructions and included a life insurance

policy that was not discussed in the first appeal, and therefore, should not be included in

the marital estate.

          Wife cross-appeals, requesting that this Court award attorney fees in light of the

lengthy litigation that she has had to finance to distribute the marital assets following the

dissolution. Finding no error and declining to award Wife attorney fees, we affirm the

judgment of the trial court.

                                           FACTS

          As stated above, Husband and Wife have been married to each other twice. They

were first married on March 21, 1992. That marriage ended on May 1, 2003, by a



                                              2
dissolution decree under cause number 49D05-0211-DR-1879. After dissolving their

marriage, the couple lived apart for several months but maintained contact.

       Husband and Wife remarried on April 16, 2004. Both parties were employed for

much of the marriage; however, towards the end of the marriage, Husband’s work hours

were significantly reduced because less work was available for him.

       Unfortunately, the second marriage also failed, and Wife filed for dissolution of

marriage on November 3, 2008. Mediation was unsuccessful, and a final hearing was

conducted on January 12, 2010. No children were born to the marriage, so division of the

marital property was the primary issue before the trial court at the final hearing.

       When the trial court issued its decree of dissolution, it ordered an equal

distribution. The vast majority of Husband’s share was based on the value assigned by

the trial court to his pension, which was $181,800. Additionally, Husband was ordered to

make an equalization payment of $19,546.

       Husband appealed the distribution of assets, raising three arguments: 1) the trial

court erred by dividing property that was subject to the 2003 decree, dissolving the

parties’ first marriage; 2) the trial court erred by referencing Husband’s instances of

negative behavior, including allegations of domestic violence, a conviction for

intimidation, his violation of a protective order that Wife had obtained against him, and

his disruptive conduct during the final dissolution hearing; and 3) the trial court erred by

assigning a value to Husband’s pension without considering the present value of the



                                              3
benefits. Hawkins v. Hawkins, 49A05-1007-DR-446, slip op. at 1 (Ind. Ct. App. March

11, 2011) (Hawkins I).

        The Hawkins I Court determined that upon the parties’ second marriage, the

retirement account once again became marital property subject to equitable division, and

“[f]or purposes of the present dissolution, the 2003 decree is not controlling and the trial

court did not err by disregarding it.” Hawkins I, slip op. at 3. As for Husband’s negative

behavior, the panel noted that because the trial court did not rely on his negative behavior

in dividing the marital property, any error concerning Husband’s negative behavior was

not grounds for reversal. Id. at 4.

        Lastly, the panel concluded that “[b]ecause a dollar now is worth more than a

dollar ten years from now, [Husband’s] receipt of his pension over time following his

retirement is worth less than the same dollar amount divided between [Husband] and

[Wife] now.” Id. Accordingly, the panel remanded to the trial court with instructions to

hold a hearing on the proper value of Husband’s pension. The panel further stated:

        The trial court is also instructed to reconsider the division of assets and
        make any change to [Husband’s] equalization payment to [Wife] that may
        be necessary for an equal or otherwise equitable division in light of any
        new value assigned the pension.

Id. at 6.

        A hearing on remand was conducted on July 29, 2011. The Husband called an

actuary as an expert witness to provide testimony regarding the present value of

Husband’s pension. The actuary stated that the present value of Husband’s pension as of


                                             4
the date of the filing of the second dissolution petition was $102,902. Appellant’s App.

p. 242, 266-68.

          Because Wife appeared pro se, the hearing on remand was bifurcated so that she

could return with counsel. The second half of the remand hearing was conducted on

October 6, 2011. During the second half of that hearing, Wife’s counsel raised the issue

of a life insurance policy that was not included in the first distribution.

          When the trial court issued its distribution of marital assets and liabilities

following the remand hearing, the trial court adopted the present value of Husband’s

pension as testified to by the actuary. The value of Husband’s pension included in the

marital estate was then reduced from $181,8001 to $71,929, based on a coverture fraction

that included that entire time from the beginning of the parties’ first marriage to the date

of filing for dissolution of the second marriage. Appellant’s App. p. 14-15.

          The trial court also determined that

          changes to equalization [are] necessary and finds that based upon the new
          values assigned, the impact of those new values upon each party, and the
          disparity in the earning abilities of the parties that equitable distribution
          requires the court to deviate from an equal distribution of assets and
          liabilities and to distribute 58.9% of the marital estate to [Wife] and 41.1%
          of the estate to [Husband], as set out in Paragraph 12, above, and resulting
          in no equalization payment required from either party to the other.

Id. at 16.

          On January 13, 2012, Husband filed a motion to correct error, which was denied

on February 20, 2012. Husband now appeals.

1
    The value placed on Husband’s pension before remand.
                                                   5
                             DISCUSSION AND DECISION

                                  I. Standard of Review

       Husband argues that the trial court erred on remand by ordering an unequal

distribution of the marital property and exceeding the bounds of the remand instructions

and the statutory presumption in favor of an equal distribution of marital property.

Additionally, Husband contends that the trial court erred by including a life insurance

policy that was not in the original distribution, and, therefore, not discussed in the first

appeal. Consequently, Husband contends Wife waived raising the life insurance policy

as an asset.

       Here, the trial court entered findings of fact and conclusions thereon pursuant to

Indiana Trial Rule 52(A). When a trial court enters findings of fact and conclusions

thereon, we first determine whether the evidence supports the findings and then whether

the findings support the judgment. Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind. Ct.

App. 1997).

       On appeal, a reviewing court may not set aside the trial court’s judgment unless it

is clearly erroneous. In re Marriage of Nickels, 834 N.E.2d 1091, 1095 (Ind. Ct. App.

2005). Findings are clearly erroneous when a review of the record leaves one firmly

convinced that a mistake has been made. Cooper v. Calandro, 581 N.E.2d 443, 445 (Ind.

Ct. App. 1991).




                                             6
                            II. Unequal Distribution of Assets

      Husband argues that on remand, the trial court erred by unequally distributing the

marital assets and that its decision to do so was based on factors outside the scope of the

remand instructions. Indiana Code section 31-15-7-5 governs the division of marital

assets upon dissolution and provides:

      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.

             (3) The economic circumstances of each spouse at the time the
                 disposition of the property is to become effective, including the
                 desirability of awarding the family residence or the right to dwell
                 in the family residence for such periods as the court considers
                 just to the spouse having custody of any children.

             (4) The conduct of the parties during the marriage as related to the
                 disposition or dissipation of their property.

             (5) The earnings or earning ability of the parties as related to:

                 (A) a final division of property; and

                 (B) a final determination of the property rights of the parties.


                                             7
       The reviewing court is to presume that the trial court considered all of the

evidence in the record and properly applied the statutory factors. Shumaker v. Shumaker,

559 N.E.2d 315, 318 (Ind. Ct. App. 1990). The trial court is not required to list those

factors that do not justify an unequal division of the property, but rather, need only state

its reasons for deviating from the presumption of an equal division. Id.

       In Hawkins I, a panel of this Court remanded the original judgment back to the

trial court to assign a present value to Husband’s pension. Hawkins I, slip op. at 6.

Moreover, the trial court was instructed to “reconsider the division of assets and make

any change to [Husband’s] equalization payment to [Wife] that may be necessary for an

equal or otherwise equitable division in light of any new value assigned to the pension.”

Id.

       On remand, Husband’s pension was determined to be valued $71,929 rather than

$181,800 “as previously ordered.” Appellant’s App. p. 15. Following this adjustment,

the trial court further determined that:

       Equity requires that two additional adjustments be made to the court’s
       previous distribution to the marital estate. First, . . . this court determined
       that [Husband] owned life insurance with a cash value of $20,000.00 . . . .
       That asset, however, was inadvertently not included as a part of the final
       marital distribution. That error should now be corrected. Second, the court
       determined that each party was to pay one-half of the tax liability of
       $2,137.00 owed at the time of final hearing. To avoid additional penalties
       and interest [Wife] paid the entire amount due and [Husband] had not
       reimbursed her as of the remand hearing on October 6, 2011. The marital
       distribution should now be adjusted to account for the additional liability
       paid by [Wife] on behalf of [Husband].



                                             8
Id. (emphases added); see also id. at 27 (finding 27 in the April 21, 2010 decree, stating

“[Wife] owns only term policies with no cash value. [Husband] reported cash value of

$20,000.00”).

       As stated above, the trial court acknowledged that its April 21, 2010 decree

effected an equal distribution of the marital assets. Appellant’s App. p. 16. However, the

trial court observed that because a substantially different value had been assigned to

Husband’s pension, “[t]he court also now reconsiders changes to equalization necessary .

. . based upon the new values assigned, the impact of those new values upon each party,

and the disparity in the earning abilities of the parties that equitable distribution requires

the court to deviate from equal distribution.” Id. Specifically, the trial court awarded

58.9% of the marital estate to Wife and 41.1% of the marital estate to Husband. Id.

       Here, since 2008, Wife had been responsible for making payments and taking care

of the marital home. Appellant’s App. p. 88. And although Husband argues that the trial

court made no findings of fact regarding the parties’ earning abilities, there was ample

evidence presented at the original trial court hearing on the earning abilities of both

parties. More particularly, Wife submitted a financial declaration in March 2009 that her

estimated gross weekly salary was $593.20. Id. at 91. Husband’s financial declaration

showed $415 in unemployment income. Id. at 152. But according to his testimony, he

had the capacity to earn $850 a week. Id.

       Under these circumstances, we cannot say that the trial court erred by unequally

dividing the marital estate on remand. Moreover, in light of the trial court’s admission

                                              9
that it had inadvertently failed to include Husband’s life insurance in the marital estate

and was going to correct that error, we cannot agree with Husband’s assertion that it was

error for the trial court to include his life insurance in the marital estate or that Wife had

somehow waived its inclusion.

       First, it was entirely proper to include Husband’s life insurance as a marital asset.

See Ind. Code § 31-15-7-4(a) (stating that in a dissolution of marriage action, the court

shall divide the property of the parties, whether it was owned by either of them before the

marriage, acquired by either of them in his or her own right during the marriage, or

acquired by their joint efforts).     Additionally, unless the parties have an express

agreement to the contrary, we “express doubt that a party may ‘waive’ an asset out of the

marital pot.” Ross v. Ross, 638 N.E.2d 1301, 1304 (Ind. Ct. App. 1994). Consequently,

we find Husband’s arguments unavailing.

                             III. Cross Appeal – Attorney Fees

       Wife cross-appeals, requesting that this Court award her attorney fees in light of

the lengthy litigation that she has had to finance to receive her portion of the marital

estate. Wife admits that she was prepared to put the issue behind her following the trial

court’s hearing on remand. Accordingly, it appears that Wife did not request attorney

fees from the trial court. However, Wife highlights the fact that “she has now incurred

even more attorney fees with the second appeal on marital distribution of assets.”

Appellee’s Br. p. 8.



                                             10
        Indiana Code section 31-15-10-1 provides that a trial court may order a party to

pay a reasonable amount to the other party for the cost of maintaining or defending any

action in dissolution proceedings. In deciding whether to grant a request for attorney

fees, the “court must consider the resources of the parties, their economic condition, the

ability of the parties to engage in gainful employment and to earn adequate income, and

other factors that bear on the reasonableness of the award.” Hartley v. Hartley, 862

N.E.2d 274, 286 (Ind. Ct. App. 2007). These factors promote the legislative purpose of

the statute, which is to give the party, who would otherwise not be able to afford

representation, the ability to retain an attorney. Id. at 286-87.

        Here, Wife is able to engage in gainful employment. Appellant’s App. p. 91.

Additionally, Wife was awarded 58.9% of the marital estate. But most compelling, Wife

failed to request attorney fees from the trial court. Consequently, we are unable to give

Wife what she requests, which is to grant an award of attorney fees to be determined by

the trial court. Accordingly, Wife’s request is denied, and we affirm the decision of the

trial court.

        The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




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