MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                                  FILED
the defense of res judicata, collateral                                  Oct 25 2017, 8:54 am
estoppel, or the law of the case.                                             CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Matthew J. McGovern                                      Thomas E. Banks, II
Anderson, Indiana                                        Louisville, Kentucky



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of:                                   October 25, 2017
                                                         Court of Appeals Case No.
Marie Adkins,                                            31A01-1705-DR-1102
Appellant-Petitioner,                                    Appeal from the Harrison Circuit
                                                         Court
        v.                                               The Honorable John Evans,
                                                         Special Judge
Paul Adkins,                                             Trial Court Cause No.
Appellee-Respondent.                                     31C01-1410-DR-240




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017           Page 1 of 9
                                          Case Summary
[1]   Appellant-Petitioner Marie Adkins (“Wife”) and Appellee-Respondent Paul

      Adkins (“Husband”) were married for just over fifty years before Wife filed a

      petition seeking the dissolution of the parties’ marriage in October of 2014.

      Since the initiation of divorce proceedings, the parties have participated in

      numerous mediation sessions and have agreed to an equal division of their

      marital assets. The parties, however, reserved certain issues to be decided by

      the trial court, including issues relating to the alleged dissipation of the marital

      estate, misuse of marital funds, contempt, and attorney’s fees. With respect to

      these remaining issues, on March 8, 2017, the trial court issued its findings of

      fact and conclusions thereon. Wife appeals, arguing that the trial court erred in

      finding that Husband did not dissipate the parties’ marital estate. Finding no

      error by the trial court, we affirm.



                            Facts and Procedural History
[2]   Husband and Wife were married in April of 1964. At the time of the marriage,

      the parties had very few assets. During the course of the marriage, the parties

      built a marital estate worth approximately $8,000,000.


[3]   While married, the parties owned and operated a number of companies,

      including: Adkins Hardwood; Adkins Sawmill; AII; Paul Adkins, LLC; and

      Triple A Woodworking. Adkins Hardwood was started in 1966 by Husband.

      Adkins Sawmill was purchased in 1987. Its purpose, in part, was to provide


      Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017   Page 2 of 9
      lumber to Adkins Hardwood, although it did have other customers. Husband

      and Wife had equal stock ownership in Adkins Hardwood and Adkins Sawmill.

      Paul Adkins, LLC is a horse-racing business started by Husband in 2002.


[4]   Although each of the businesses constituted separate entities, Husband and

      Wife would sometimes use money from one of the businesses to pay taxes or,

      when necessary, to fund the other businesses. Husband admitted that some

      distributions from the businesses were used to fund Paul Adkins, LLC.

      Husband did not hide the movement of funds between the businesses and

      always reflected the movement on the businesses’ accountings.


[5]   By 2006, Husband had expanded Paul Adkins, LLC to include a broodmare

      operation. As part of this operation, Husband bred and trained horses. At the

      time of the final hearing, the operation held approximately thirty-five horses

      and had typical associated costs. Larry Smallwood, an expert with over forty

      years of experience in the business side of the horse-racing industry, testified

      during the evidentiary hearing that Husband’s expenses appeared reasonable in

      light of the costs to breed and train horses in Indiana. Although Wife initially

      claimed to be unaware of the horse-racing business, the business was listed on

      the parties’ joint tax returns between 2005 and 2008.


[6]   The parties separated in 2006, but reconciled shortly thereafter. Wife claimed

      that this separation occurred shortly after she learned of the horse racing

      business. Wife admitted that even though she had concerns about how

      Husband handled the parties’ finances, after reconciling, she continued to


      Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017   Page 3 of 9
      execute joint tax returns without reading the returns. Wife was not under the

      impression at any time after reconciling that Husband had ceased operation of

      the horse-racing business. The parties again separated in 2008.


[7]   Wife filed a petition seeking the dissolution of the parties’ marriage on October

      27, 2014. Throughout the pendency of the divorce proceedings, the parties

      engaged in numerous mediation sessions. The parties were ultimately able to

      reach an agreement regarding the division of their marital assets. Specifically,

      the parties agreed to an equal distribution of the marital estate, with each party

      receiving approximately $4,000,000 in assets. However, the parties reserved

      some issues to be decided by the trial court, namely issues relating to the alleged

      dissipation of the marital estate, misuse of marital funds, contempt, and

      attorney’s fees.


[8]   Following a two-day evidentiary hearing, the trial court found, in relevant part,

      as follows:


              44. Husband has not spent monies frivolously, wastefully or
              foolishly.
              45. Husband had no intent to hide, deplete or divert the marital
              assets.
              46. There has been do dissipation of the marital estate.
              47. There is no basis to deviate from the equal division of marital
              assets.
              48. The primary discovery issues arose as a result of the actions
              or positions of the companies’ accountants, not Husband.
                                             ****
              52. Wife’s request to find Husband in contempt of Court is
              denied.
              53. Wife’s requests to award her additional monies on the basis
      Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017   Page 4 of 9
              of dissipation, disposition of assets, or equalization of
              distributions, are denied.
              54. Each party shall pay that party’s own costs and attorney’s
              fees.


      Appellant’s App. Vol. III, pp. 58-59. Wife now appeals.



                                 Discussion and Decision
[9]   In issuing the decree of dissolution, the trial court entered findings of fact and

      conclusions of law.


              Where a trial court has made findings of fact, we apply the
              following two-tier standard of review: whether the evidence
              supports the findings of fact, and whether the findings of fact
              support the conclusions thereon. Yanoff v. Muncy, 688 N.E.2d
              1259, 1262 (Ind. 1997). Findings will be set aside if they are
              clearly erroneous. Id. Findings are clearly erroneous only when
              the record contains no facts to support them either directly or by
              inference. Id. A judgment is clearly erroneous if it applies the
              wrong legal standard to properly found facts. Id. To determine
              that a finding or conclusion is clearly erroneous, our review of
              the evidence must leave us with the firm conviction that a
              mistake has been made. Id.


      Campbell v. Campbell, 993 N.E.2d 205, 209 (Ind. Ct. App. 2013). “As we

      conduct our review, we presume the trial court followed the law.” Id. (citing

      Rea v. Shroyer, 797 N.E.2d 1178, 1181 (Ind. Ct. App. 2003)). “It is not enough

      that the evidence might support some other conclusion, but it must positively

      require the conclusion contended for by appellant before there is a basis for

      reversal.” Id. (citing Rea, 797 N.E.2d at 1181).

      Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017   Page 5 of 9
        Whether the Trial Court Erred by Finding that Husband
                Did Not Dissipate the Marital Estate
[10]   “The term ‘dissipate’ is defined as ‘[t]o destroy or waste, as to expend funds

       foolishly.’” In re Marriage of Coyle, 671 N.E.2d 938, 943 (Ind. Ct. App. 1996)

       (citing BLACK’S LAW DICTIONARY 473 (6th ed. 1990)).


               Waste and misuse are the hallmarks of dissipation. Our
               legislature intended that the term carry its common meaning
               denoting “foolish” or “aimless” spending. In re Marriage of
               Roberts, 670 N.E.2d 72, 76 (Ind. Ct. App. 1996). Dissipation has
               also been described as the frivolous, unjustified spending of
               marital assets which includes the concealment and misuse of
               marital property. Volesky v. Volesky, 412 N.W.2d 750, 752-53
               (Minn. Ct. App. 1987). It generally involves the use or
               diminution of the marital estate for a purpose unrelated to the
               marriage and does not include the use of marital property to meet
               routine financial obligations. See id.


       Id.


[11]   “Whether a dissipation has occurred cannot be determined by applying one

       factor.” Id. “The proper inquiry requires the trial court to weigh various

       considerations.” Id. “The test for dissipation of marital assets is whether the

       assets were actually wasted or misused.” Id. at 944. To determine whether

       dissipation has occurred, we consider the following factors:


               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


       Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017   Page 6 of 9
                4. Whether the dissipating party intended to hide, deplete, or
                divert the marital asset.


       Kondamuri v. Kondamuri, 852 N.E.2d 939, 952 (Ind. Ct. App. 2006) (footnote

       omitted). We generally apply an abuse of discretion standard when reviewing

       findings relating to dissipation. See In re Marriage of Coyle, 671 N.E.2d at 942.

       “‘An abuse of discretion occurs if the trial court’s decision is clearly against the

       logic and the effect of the facts and circumstances before the court or if the court

       has misinterpreted the law.’” Kondamuri, 852 N.E.2d at 949 (quoting Thompson

       v. Thompson, 811 N.E.2d 888, 924 (Ind. Ct. App. 2004), trans. denied).


[12]   Wife contends that the trial court abused its discretion in finding that Husband

       did not dissipate the marital estate. Wife claims that since the parties’

       separation, Husband has dissipated $269,583 in marital assets. 1 She argues that

       most, if not all, of these funds have been lost in relation to Husband’s horse-

       racing business. While acknowledging that the horse-racing business has made

       a profit in at least one of the years it has been in existence, Wife asserts that the

       business’s losses can only be described as unreasonable and wasteful. Wife also

       asserts that Husband’s expenditures during the breakdown of the parties’

       marriage should receive high scrutiny.




       1
         Wife spends a significant portion of her Appellant’s Brief arguing that since its incorporation, the horse-
       racing business has lost in excess of $1,000,000. However, in setting forth her requested relief, Wife only
       requests to be awarded $134,791.50, which she claims represents her share of the marital assets which have
       allegedly been dissipated since the parties’ separation.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017             Page 7 of 9
[13]   The trial court heard a significant amount of evidence relating to the parties’

       finances and the finances of their numerous businesses over the course of two

       days. This evidence included both the parties’ testimony and financial records.

       It also included the opinion of Smallwood, an expert with over forty years of

       experience in the business side of the horse-racing industry, testified during the

       evidentiary hearing that Husband’s expenses appeared reasonable in light of the

       costs to breed and train horses in Indiana. After considering all of this

       evidence, the trial court determined that Husband’s actions with regard to the

       horse-racing business did not amount to dissipation. Our review of the record

       does not leave us with the firm conviction that the evidence positively requires

       the conclusion that the trial court erred in reaching its decision. Wife’s

       assertion otherwise amounts to nothing more than a request for this court to

       reweigh the evidence, which we will not do. See Clary-Ghosh v. Ghosh, 26

       N.E.3d 986, 990 (Ind. Ct. App. 2015) (providing that “[w]e give due regard to

       the trial court’s ability to assess the credibility of witnesses and will not reweigh

       the evidence”).


[14]   Wife further claims that there was no evidence suggesting that she acquiesced to

       the expenditures relating to the horse-racing business. In support of this claim,

       Wife points to evidence that she asserts proves that she objected to continuation

       of the horse-racing business. However, Wife points to no evidence that she

       demanded that the business be closed. Although Wife claims that she separated

       from Husband upon learning of the business in 2006, it is undisputed that Wife

       knew of the business’s continued existence when she reconciled with Husband.


       Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017   Page 8 of 9
       In addition, despite Wife’s claimed objections to the way Husband was

       handling the parties’ finances, Wife continued to sign tax documents without

       reviewing the documents or conducting oversight over the parties’ finances.

       We agree with Husband’s contention that the trial court could “draw the

       inference that [by] doing nothing for nearly a decade when one knows of a

       course of action[, the] inactive party at a minimum is tacitly agreeing with the

       course of action.” Appellee’s Br. p. 17. Wife’s assertion that the trial court

       abused its discretion in finding that she acquiesced to the expenditures relating

       to the horse racing business again amounts to nothing more than a request for

       this court to reweigh the evidence, which we will not do. See Ghosh, 26 N.E.3d

       at 990.



                                                 Conclusion
[15]   Upon review, we conclude that the trial court did not abuse its discretion in

       finding that Husband did not dissipate the marital estate. As such, we affirm

       the judgment of the trial court.2


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


       May, J., and Barnes, J., concur.




       2
         Given our conclusion, we consequently reject Wife’s request for us to make a finding that Husband
       dissipated the marital assets and order a so-called “equalization payment” without remanding the matter
       back to the trial court.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1705-DR-1102 | October 25, 2017          Page 9 of 9
