MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 May 19 2016, 8:16 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Steven K. Raquet                                        Jeffry G. Price
Derick W. Steele                                        Peru, Indiana
Raquet, Vandenbosch & Steele
Kokomo, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Richard A. Vagedes,                                     May 19, 2016
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        52A02-1506-DR-700
        v.                                              Appeal from the Miami Superior
                                                        Court
Betty Jo Vagedes,                                       The Honorable Daniel C. Banina,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        52D02-1310-DR-294



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016             Page 1 of 10
                                Case Summary and Issue
[1]   The marriage of Richard Vagedes (“Husband”) and Betty Jo Vagedes (“Wife”)

      was dissolved by a Decree of Dissolution entered by the trial court on May 15,

      2015. Husband appeals the trial court’s division of property, raising the sole

      issue of whether it was error to divide the marital property equally between the

      parties. Concluding the trial court did not err in finding an equal division was

      just and reasonable in this case, we affirm.



                            Facts and Procedural History                               1




[2]   Husband and Wife were married in 2003 and separated in 2013. No children

      were born to the marriage. Husband owned a home valued at $98,000

      encumbered by no debt at the time of the marriage. During the marriage,

      Wife’s name was added to the deed and the parties took out a mortgage on the

      house. In addition, Husband came into the marriage with an investment

      account that was funded by monetary gifts from his first wife’s parents and by

      money he inherited when his first wife died. The account was valued at

      approximately $114,000 at the time of the marriage. By the time of the final

      hearing, the investment account was valued at approximately $55,000.




      1
       We commend Husband for keeping the Statement of the Case and the Statement of Facts in his brief
      concise and relevant to the issue presented. We also commend Wife for agreeing with Husband’s Statement
      of the Case.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016          Page 2 of 10
[3]   Husband worked a full-time job for the first few years of the marriage, until he

      was disabled by a back injury. Wife also worked full time at various jobs during

      the marriage until she was temporarily disabled by a cancer diagnosis. Both

      parties were receiving disability benefits at the time of the final hearing—

      Husband receives approximately $1,350 per month and Wife receives

      approximately $1,300 per month—and Husband receives a pension of

      approximately $850 per month. Wife was also working a temporary job at the

      time of the final hearing, making approximately $520 per week. Wife has an

      IRA she contributed to throughout the marriage valued at $11,000.


[4]   The trial court held a final hearing in February of 2015. Husband, Husband’s

      daughter who was managing his finances, and Wife all testified. As the trial

      court characterized it, Husband proposed an “extreme deviation” from the

      presumptive equal division of the marital property, arguing Wife should only

      take from the marital estate what she brought in – the value of her vehicle and

      her IRA, or approximately $24,000.2 Appellant’s Appendix at 29. Wife

      proposed an equal distribution.


[5]   The trial court entered its Decree of Dissolution on May 15, 2015:

               Both parties have had serious medical conditions. Both parties
               receive Social Security Disability benefits but [Husband] also
               receives a pension in addition to the Social Security. The court




      2
       Based on the trial court’s calculation that the net marital estate was valued at $130,760, Husband’s proposal
      would have resulted in an 18/82 percent division in his favor.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016                Page 3 of 10
        notes that [Husband] receives slightly more income than [Wife]
        does.


        [Wife] testified that during most of their marriage, [Husband] did
        not work and drew disability while she worked for the majority
        of the marriage. She testified that her income provided the
        health insurance for the couple and helped pay the household
        bills.


        However, [Wife] testified that she currently is in remission from
        breast cancer Stage III and has started back to work full time
        through a temp agency. [Wife] also said that she must have
        reconstruction surgery in April that will take her away from her
        work for several weeks and there will be future testing to monitor
        the cancer. Thus, while [Wife] expects to make a full recovery
        and eventually go back to work full time, her health and financial
        security in the future are currently unknown.


        [Husband] appeared to claim that he received an inheritance in
        the form of the [investment] account before marrying [Wife] and
        that he should receive all of what’s left. [Husband] did not argue
        that the [investment] account was not marital property, just that
        there should be an extreme deviation from the presumption of an
        equal and just division, presumably because of the inheritance.
        [Wife] presented evidence that marital funds were used to pay a
        loan taken against the [investment] account and that [Wife] had
        expected to receive a portion of those funds if [Husband] passed
        away.


        [Husband] testified that he also had the marital residence from
        before the marriage to [Wife] and that he should receive that as
        well. However, [Husband] added [Wife] to the house deed in
        June 2003. [Wife] contributed financially to its maintenance
        during the marriage by cosigning on a mortgage to make certain
        large repairs, such as the roof, soffits and driveway. . . .

Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016   Page 4 of 10
              The parties seemed to agree that each would receive any bank
              accounts that each person now has and each party would retain
              any other personal property now in his or her own
              possession. . . .


              The court is to presume an equal division of the marital property.
              I.C. 31-15-7-5. The statute instructs the court to consider what
              the parties brought into the marriage, the parties’ behavior during
              the marriage with respect to any dissipation of assets and as well
              as accumulation of assets and debts during the marriage. The
              court is also to take into account the parties’ incomes as they
              proceed into the future. The court now concludes that a just and
              reasonable division for both parties would be an approximate
              equal division of the assets and debts
              . . . . The court does not find that [Husband] has overcome this
              burden or that there was evidence of a “true” inheritance to
              justify a deviation.


              ***


              As a result of the equal distribution of assets and debts [Husband]
              owes [Wife] $36,182.71.


      Id. at 28-31 (emphasis in original). Husband now appeals the trial court’s

      division of property.



                                Discussion and Decision
                                     I. Standard of Review
[6]   Indiana Code chapter 31-15-7 governs disposition of marital assets in a

      dissolution proceeding. Pursuant to Indiana Code section 31-15-7-4, the trial


      Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016   Page 5 of 10
      court shall divide the property of the parties in a just and reasonable manner,

      whether that property was owned by either spouse before the marriage,

      acquired by either spouse in his or her own right after the marriage and before

      the final separation, or acquired by their joint efforts. This “one pot” theory of

      marital property ensures that all marital assets are subject to the trial court’s

      power to divide and award. Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind.

      Ct. App. 2011). The division of marital property is highly fact sensitive, Fobar v.

      Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002), and is therefore a task within the

      sound discretion of the trial court, Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct.

      App. 2014). We will not weigh the evidence, instead considering the evidence

      in the light most favorable to the judgment. Fobar, 771 N.E.2d at 59. We will

      reverse only for an abuse of discretion; that is, if there is no rational basis for the

      award or if the trial court has misinterpreted the law or disregarded evidence of

      the statutory factors. Luttrell v. Luttrell, 994 N.E.2d 298, 301 (Ind. Ct. App.

      2013), trans. denied. Although the facts and reasonable inferences might allow

      for a conclusion different from that reached by the trial court, we will not

      substitute our judgment for that of the trial court. Webb v. Schleutker, 891

      N.E.2d 1144, 1154 (Ind. Ct. App. 2008).


[7]   The trial court’s judgment here included sua sponte findings of fact and

      conclusions. Where a trial court enters findings sua sponte, we review issues

      covered by the findings with a two-tiered standard of review that asks whether

      the evidence supports the findings, and whether the findings support the

      judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). Any issue not covered

      Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016   Page 6 of 10
      by the findings is reviewed under the general judgment standard, meaning a

      reviewing court should affirm based on any legal theory supported by the

      evidence. Id.


                      II. Equal Division of Marital Property
[8]   “The court shall presume that an equal division of the marital property between

      the parties is just and reasonable.” Ind. Code § 31-15-7-5. However, the

      presumption of equal division may be rebutted by a party who presents

      evidence that an equal division would not be just and reasonable because of the

      contribution each spouse made to the acquisition of property; the extent to

      which property was acquired before the marriage or through inheritance or gift;

      the economic circumstances of each spouse at the time of dissolution; the

      conduct of the parties during the marriage relating to their property; and the

      earnings or earning ability of each party. Id. The party seeking to rebut the

      presumption of equal division bears the burden of proof of doing so. Beckley v.

      Beckley, 822 N.E.2d 158, 163 (Ind. 2005).


[9]   Husband argues the trial court erred in equally dividing the marital property.

      As the trial court noted, Husband did not advocate leaving the value of the

      house or the investment account out of the marital pot, and he does not do so

      on appeal. Rather, he asserts the trial court failed to give proper “weight and

      credit to the value of the property [Husband] brought into the marriage, the

      length of time the property was owned prior to the marriage and the

      contributions, or lack thereof, provided by [Wife] in obtaining the property.”


      Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016   Page 7 of 10
       Brief of Appellant at 7. Accordingly, Husband argues the trial court should

       have deviated from the presumptive equal division and awarded him a greater

       percentage of the marital estate.3


[10]   The trial court’s property division is to be considered as a whole and not item

       by item. Fobar, 771 N.E.2d at 59. No one factor listed in section 31-17-7-5 is

       entitled to special weight over any other. See Bertholet v. Bertholet, 725 N.E.2d

       487, 496 (Ind. Ct. App. 2000). “Even if some items meet the statutory criteria

       that may support an unequal division of the overall pot, the law does not

       require an unequal division if overall considerations render the total resolution

       just and equitable.” Fobar, 771 N.E.2d at 59. With respect to the factors set out

       in Indiana Code section 31-15-7-5, Husband did bring the majority of the

       marital property into the marriage, at least some of which was acquired by

       inheritance or gift. See Ind. Code § 31-15-7-5(1) and (2). Not only does

       Husband already have a greater income, Wife is about to lose her temporary

       employment for medical reasons, and although she hopes and expects to be able

       to return to work, there is no guarantee that she will so her future economic

       circumstances are uncertain. See Ind. Code § 31-15-7-5(3) and (5). The parties

       treated the house and the investment account as joint property. See Ind. Code §

       31-15-7-5(4). Husband owned the house when the parties were married, but




       3
        Wife misconstrues Husband’s argument when she states Husband “got what he asked for, namely the house
       was awarded to him.” Appellee’s Brief at 9. He did indeed receive the physical house, but what Husband
       advocated was that he also receive the value of the house on his side of the balance sheet with no offsetting
       payment to Wife.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016              Page 8 of 10
       Wife was added to the deed on the house and co-signed a mortgage used to

       make repairs and improvements. As to the investment account, whether or not

       Wife had direct access to the investment account herself, monies were

       withdrawn from that account for family purposes. Further, Wife testified that

       the investment account was to be shared equally between her and Husband’s

       daughters upon Husband’s death. In fact, after the downturn in the market

       caused the value of the account to decrease, the shares were rearranged so that

       Wife would receive a greater percentage.


[11]   Although the couple’s largest assets were brought into the marriage by

       Husband, there was no requirement that any assets or value be set off to him

       and no requirement that the overall pot be unequally divided. The evidence

       favorable to the judgment amply supports the trial court’s finding that an equal

       division of the marital pot is just and reasonable.4



                                                 Conclusion
[12]   The trial court did not err in finding that Husband had failed to rebut the

       presumption that an equal division of the marital property is just and

       reasonable. Accordingly, the trial court’s judgment dividing the property

       equally is affirmed.




       4
        Although not raised by Wife, we note the trial court awarded Husband’s pension to him and Wife’s IRA to
       her. However, the trial court assigned no value to Husband’s pension while including the $11,000 value of
       Wife’s IRA in the marital pot. So in fact, Husband did receive more than fifty percent of the marital estate.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016               Page 9 of 10
[13]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1506-DR-700 | May 19, 2016   Page 10 of 10
