MEMORANDUM DECISION
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 establishing                         Apr 02 2020, 11:31 am
the defense of res judicata, collateral
                                                                          CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Kelley Y. Baldwin                                        Michael C. Cooley
Yeager Good & Baldwin                                    Allen Wellman McNew Harvey,
Shelbyville, Indiana                                     LLP
                                                         Greenfield, Indiana
Isaac G.W. Trolinder
Trolinder Law, LLC
Shelbyville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Sharon Kay Gahimer                                       April 2, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DN-2473
        v.                                               Appeal from the Decatur Circuit
                                                         Court
Gary Wayne Gahimer,                                      The Honorable Timothy B. Day,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         16C01-1806-DN-330



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020                 Page 1 of 10
                                          Case Summary
[1]   On June 18, 2018, Sharon Kay Gahimer filed a petition to dissolve her eleven-

      month marriage to Gary Wayne Gahimer. The trial court issued a dissolution

      decree on October 8, 2019, dissolving the parties’ marriage and ordering an

      equal distribution of the marital estate. Sharon appeals the trial court’s order,

      arguing that the trial court abused its discretion by equally dividing the parties’

      marital estate. We affirm.



                            Facts and Procedural History
[2]   Sharon and Gary were married on July 29, 2017. Prior to the parties’ marriage,

      Sharon and Gary each owned a home. When they married, Sharon and Gary

      lived in the home that had been owned by Sharon prior to the marriage (“the

      marital residence”). Sharon refinanced the mortgage to add Gary’s name to the

      deed and mortgage. Sharon and Gary also took out a line of credit against the

      marital residence. They used the funds from the line of credit to make a

      number of improvements to the marital residence, including adding an in-

      ground pool and a pole barn, which was to both house Gary’s business

      equipment and be used for entertainment purposes.


[3]   After the parties married, they sold Gary’s home. The proceeds from the sale

      were divided between one of Gary’s retirement accounts and debts connected to

      the marital residence. During the parties’ marriage, Sharon was employed by

      Honda Manufacturing and Gary was self-employed as a general contractor.


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 2 of 10
[4]   Less than one year after getting married, on June 18, 2018, Sharon filed a

      petition seeking the dissolution of the parties’ marriage. The trial court

      conducted a two-day evidentiary hearing on June 13 and September 26, 2019.

      At the conclusion of the evidentiary hearing, the trial court issued an order in

      which it dissolved the parties’ marriage and ordered an equal distribution of the

      parties’ marital estate.



                                 Discussion and Decision
[5]   Sharon challenges the trial court’s division of the marital estate on appeal. In

      doing so, she argues that the trial court abused its discretion in determining that

      an equal distribution of the marital estate was just and reasonable.


              The division of marital assets lies within the trial court’s
              discretion, and as such, we reverse only on a showing that the
              court has abused its discretion. An abuse of discretion occurs
              where the trial court’s decision is clearly against the logic and
              effect of the facts and circumstances before it. In conducting our
              review, we neither reweigh evidence nor reassess witness
              credibility; rather, we consider only the evidence most favorable
              to the trial court’s disposition.


      Bock v. Bock, 116 N.E.3d 1124, 1130 (Ind. Ct. App. 2018) (internal citations

      omitted).


[6]   With regard to the division of a marital estate, Indiana Code section 31-15-7-5

      provides as follows:




      Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 3 of 10
        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.


“Per the statute, a trial court starts with the presumptive fifty/fifty division of

marital assets and then determines whether the presumption has been rebutted

by relevant evidence indicating that an equal division would not be just and

reasonable.” Bock, 116 N.E.3d at 1130. “If the court deviates from the

Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 4 of 10
      presumptive equal division, it must state its reasons for that deviation in its

      findings and judgment.” Id.


[7]   Sharon argues that the trial court abused its discretion in ordering an equal

      division of the marital estate because such a division would be unjust and

      unreasonable. In considering the parties’ arguments and the evidence presented

      during the two-day hearing, the trial court stated the following:

              Okay. So, let’s look at Petitioner’s Exhibit 24. I’m working a lot
              off it. I’m going to change two numbers on it. I feel like
              Petitioner’s 24 is a depiction of all the assets and liabilities as they
              existed, close as we can on date of filing, date of your separation.
              I’m not putting a whole lot of weight in what you both had on
              the date that you married, and I’ll tell you why – it’s pretty
              comparable. Surprisingly, if you add up all of your assets, and
              debts, and houses, and everything, you both had a comparable
              net worth when you came into this, it appears to me. That
              comes into play, especially in a short-term marriage if somebody
              had a lot more than the other, okay? And I’m talking more than
              a few thousand dollars here. So -- and that would be a reason for
              me to what -- what you’ve heard bantered around, deviate, okay?

              … What the law tells me to do though is, no matter how short or
              long the marriage is, look at what the assets and liabilities are at
              the end of it, which is date of filing. So, that’s what I think is a
              fairly accurate depiction in Petitioner’s 24. It has the appraisal of
              the house. It has the two liens against the house. It has
              everyone’s vehicles. It has personal property, bank accounts,
              which I know are disputed, retirement accounts, which they
              don’t appear to be disputed, and the debts. I mean, there -- and I
              seen [sic] these numbers -- we had two hearings now, and they’re
              starting to repeat. So, I think it’s a pretty accurate depiction.



      Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 5 of 10
Tr. Vol. II pp. 245–46. In addition to Petitioner’s 24, the trial court considered

evidence relating to the parties’ personal property. Finding that neither party

had provided an accurate accounting of the value of their personal property, the

trial court, after reviewing the parties’ claimed personal property, attributed a

value of $45,000 in personal property to Gary and a value of $10,000 in

personal property to Sharon. The trial court continued its consideration into

whether to deviate from an equal distribution of the marital assets, stating:


        Now, with those two numbers, if I was to use every other
        number in this document, and again I’m using Sharon’s
        numbers, because I’m trying to show you how fair I’m trying to
        be with both of you. If I use Sharon’s numbers, the total net
        marital estate is $487,988. Okay? I don’t think there’s a lot of
        dispute. I mean, you may dispute 20,000 one way or the other,
        but I don’t think there’s a big dispute that if you added everything
        up, retirement accounts, the house, and subtracted the debts,
        you’re looking at $487,988. If you divided that number by two,
        surprisingly, amazingly, it’s pretty close to what you both came
        into this with, it’s not far -- not far off.

        Now, of that $487,988, Gary has in his pocket, $172,758. Sharon
        has in her pocket, $315,230, if I leave things the way they are.
        Okay? The net between what Sharon has and Gary has is
        $142,472. Okay, that’s how much more Sharon has than
        Gary.… I’m taking into account whether I deviate or not, a
        couple of things. One is, you know, one of you has to find a
        place to live. One of you have to start over to a certain degree.
        And I think that’s going to be a greater expense to Gary than
        Sharon, because if Sharon keeps the house, that’s a benefit to her,
        to keep it.… So, if Sharon keeps the house, if she chooses to do
        so, then all these numbers just flow through. I’m not taking –
        I’m not ignoring the proceeds from Gary’s house, because they
        are in these numbers. They’re in number one, the retirement

Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 6 of 10
              accounts that Gary set up. They’re also in the greater value in
              the house. The less mortgage in the house, because they all were
              used for those things. So, I think those -- that number’s there,
              and you can pull it out of there, so he’s not losing anything there.


      Tr. Vol. II pp. 247–48. Concluding that the parties’ failed to rebut the

      presumption that an equal distribution of the marital estate would be just and

      reasonable, the trial court ordered an equal division of the marital estate. In

      doing so, the trial court assigned certain debts to each of the parties, awarded

      certain assets to each of the parties, and ordered Sharon to pay a cash

      equalization payment to Gary in the amount of $71,236.


[8]   Sharon argues that the trial court abused its discretion in ordering an equal

      distribution of the marital estate, asserting that an equal distribution of the

      marital estate is unjust because she “contributed more to the acquisition of

      marital property during the parties’ marriage.” Appellant’s Br. p. 18. In

      making this assertion, Sharon acknowledges that the parties’ contributions

      toward certain improvements completed on the marital real estate were

      “relatively equal.” Appellant’s Br. p. 20. Her assertion instead appears to be

      based on her claim that she earned significantly more income than Gary during

      the parties’ marriage.


[9]   With regards to the parties’ contribution to the acquisition of marital property

      and the income earned by the parties during the marriage, the trial court stated

      the following:




      Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 7 of 10
        The question at the very bottom line is, do I do anything other
        than a 50/50 deviation? I mean, that’s really all both of your
        attorneys have been arguing over the whole time, and the
        argument, I mean, the best argument you got on the table is,
        Sharon made more money than Gary, or Gary made a lot less
        money than Sharon. I don’t know that’s necessarily the case.…
        I don’t know that I can necessarily say that Gary made a
        significant amount less, based solely on his tax return, and that’s
        what Sharon is kind of asking me to do, is to look at whether
        there’s a profit or a loss on the tax return.

        I’ve been in business on my own, and I know how that works,
        and I know somewhat what Gary is saying is accurate. You
        don’t want to show an income … [s]o, you look for ways to
        expense. And if in 2018 you expense that whole, well then you
        both benefited from expense, because you got money back on
        your return. But, that also contributes to making it look like
        Gary didn’t make much money. You know if you added that
        back, you know there’s forty-some thousand dollars right there of
        income that he had. But, by the same token when you operate
        your business off your property, you get to write off a lot of
        things that are benefits to the people living on that property,
        utilities, gas, fuel for your vehicles, insurance for your vehicle, all
        that gets absorbed in the ultimate, here are my expenses, IRS.

        So, I can’t find that he made a significant amount less, he’s made
        it differently. And it’s not uncommon at all that if you got
        income in November, that you start looking at, and say well I
        better buy a bunch of things for my next job, so I can expense
        that, so I don’t have such a tax liability in April. I mean, you can
        do those things when you’re in your own business, and I don’t
        have any doubt that he did that.

        I think he also contributed some in-kind labor, maybe not a lot,
        but some during the construction of the pole barn, and maybe
        some things around the house. But, there again, all in all, what
        I’m getting to, and trying to do it gently, is to say I don’t find that
Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 8 of 10
               there, in this short of a marriage, is a reason to deviate from an
               equal division. When I feel like you both came in pretty
               comparable in your earning abilities, and your assets, and
               liabilities, and your, you know, what I’m trying to do is balance
               out what we’re looking at when the smoke clears 11 months
               later, what we have, as far as assets and liabilities, and whose got
               them.


       Tr. Vol. II pp. 248–50. Sharon has failed to convince us that the trial court’s

       findings relating to the parties’ pre-marriage assets, contributions, and income

       are clearly against the logic and effect of the facts and circumstances before the

       trial court. Sharon’s challenge to the trial court’s order effectively amounts to

       nothing more than a request for this court to reweigh the evidence, which we

       will not do. See Bock, 116 N.E.3d at 1130.


[10]   Furthermore, we disagree with Sharon’s additional argument that the trial court

       “should have set over to each party his/her pre-marriage value of his/her

       retirement and equally divided only the appreciation over the course of the

       marriage of such assets.” Appellant’s Br. p. 26. In making this argument,

       Sharon effectively asserts that only the appreciation of the parties’ retirement

       accounts should have been included in the marital estate rather than the full

       value of the retirement accounts. We disagree.


               It is well-established in Indiana that all marital property goes into
               the marital pot for division, whether it was owned by either
               spouse prior to the marriage, acquired by either spouse after the
               marriage and prior to final separation of the parties, or acquired
               by their joint efforts. This “one-pot” theory insures that all assets
               are subject to the trial court’s power to divide and award. While
               the trial court may ultimately determine that a particular asset
       Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 9 of 10
               should be awarded solely to one spouse, it must first include the
               asset in its consideration of the marital estate to be divided.


       Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App. 2007) (internal citations

       omitted). Accordingly, the trial court did not abuse its discretion by including

       the full value of the parties’ retirement accounts in the marital estate.


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

       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DN-2473 | April 2, 2020   Page 10 of 10
