MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Feb 04 2016, 6:30 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Andrea L. Ciobanu                                        Marcia E. Avery-Hanley
Alex Beeman                                              Law Office of Marcia E. Avery-
Ciobanu Law, P.C.                                        Hanley
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kulwinder Kaur,                                          February 4, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1409-DR-658
        v.                                               Appeal from the Marion Superior
                                                         Court
Hardev S. Bal,                                           The Honorable Theodore M.
Appellee-Petitioner.                                     Sosin, Judge
                                                         The Honorable Caryl F. Dill,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D02-1112-DR-46524



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016      Page 1 of 10
[1]   Appellant-Respondent Kulwinder Kaur (“Wife”) appeals the trial court’s

      distribution of the marital estate in her divorce from Appellee-Petitioner Hardev

      S. Bal (“Husband”). Specifically, Wife contends that the trial court abused its

      discretion in valuing the marital residence, in including some property in the

      marital estate, in excluding other property from the marital estate, and in

      ordering an unequal distribution of the marital estate. Because we conclude

      that the trial court acted within its discretion in some regards but abused its

      discretion in others, we affirm in part, reverse in part, and remand for further

      proceedings consistent with this memorandum decision.



                            Facts and Procedural History
[2]   Husband and Wife were married on April 15, 1993. During the course of their

      marriage, Husband and Wife moved to Indiana with their two children. Upon

      moving to Indiana, the parties purchased a home in Indianapolis and Husband

      purchased a Star Mart “gas station and mini-mart” business located in Wingate.

      Appellant’s App. p. 8. Husband and Wife separated on January 2, 2010. At

      the time of separation, Husband was employed at the Star Mart and Wife was

      employed by the United States Postal Service.


[3]   On December 7, 2011, Husband filed a petition seeking a dissolution of the

      parties’ marriage. The trial court conducted an evidentiary hearing on June 17

      and 18, 2014. On August 22, 2014, the trial court issued an order dissolving the

      parties’ marriage and distributing the marital estate. The trial court’s order also



      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 2 of 10
      included a determination relating to child custody, support, and visitation. 1

      This appeal follows.



                                 Discussion and Decision
[4]   Wife contends that the trial court abused its discretion in dividing the marital

      estate. Specifically, Wife asserts that the trial court abused its discretion in

      valuing the marital residence, including the 2013 Nissan Altima in the marital

      estate, and failing to include Husband’s $56,107 interest in corporate stock in

      the marital estate. Wife further asserts that the trial court abused its discretion

      in ordering an unequal distribution of the marital estate.


                                     I. Standard of Review
[5]   The division of marital assets lies within the sound discretion of the trial court,

      and we will reverse only for an abuse of discretion. DeSalle v. Gentry, 818

      N.E.2d 40, 44 (Ind. Ct. App. 2004); Elkins v. Elkins, 763 N.E.2d 482, 484 (Ind.

      Ct. App. 2002). “‘An abuse of discretion occurs if the trial court’s decision is

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

      court, or the reasonable, probable, and actual deductions to be drawn

      therefrom.’” Dillard v. Dillard, 889 N.E.2d 28, 32 (Ind. Ct. App. 2008) (quoting

      Poppe v. Jabaay, 804 N.E.2d 789, 793 (Ind. Ct. App. 2004), trans. denied).




      1
        The parties do not challenge the portions of the trial court’s dissolution order relating to child
      custody, support, or visitation.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 3 of 10
              When a party challenges the trial court’s division of marital
              property, [s]he must overcome a strong presumption that the
              court considered and complied with the applicable statute, and
              that presumption is one of the strongest presumptions applicable
              to our consideration on appeal. DeSalle, 818 N.E.2d at 44. We
              may not reweigh the evidence or assess the credibility of the
              witnesses, and we will consider only the evidence most favorable
              to the trial court’s disposition of the marital property. Id.
              Although the facts and reasonable inferences might allow for a
              different conclusion, we will not substitute our judgment for that
              of the trial court. Id.


      Galloway v. Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006).


                          II. Valuation of Marital Residence
[6]   Wife asserts that the trial court abused its discretion in valuing the marital

      residence at $155,000. “[T]he burden of producing evidence as to the value of

      the marital property rests squarely on the shoulders of the parties and their

      attorneys.” Galloway, 855 N.E.2d at 306 (internal case quotation and citation

      omitted).


[7]   In the instant matter, neither party provided any evidence relating to the current

      market value of the marital residence. In fact, both parties explicitly testified

      that they did not know the current value of the marital residence. Review of the

      record reveals that the only evidence presented by the parties relating to the

      value of the marital residence was Husband’s testimony that the parties

      purchased the home in 2007 for $160,425 and that the remaining balance of the

      mortgage loan was approximately $150,000. Father did testify that the parties


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 4 of 10
      had refinanced the marital residence on two occasions and modified their

      mortgage on one occasion, but did not present any specific information relating

      to the value of the marital residence at the time of these transactions.


[8]   Given that neither party presented any evidence specifically relating to the

      value of the marital residence, we cannot say that the trial court’s decision to

      value the marital residence at $155,000, or approximately half the difference

      between the purchase price of the marital residence and the remaining balance

      on the mortgage loan, is clearly against the logic and effect of the facts and

      circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom. We therefore conclude that the trial court

      did not abuse its discretion in this regard.2


                                    III. 2013 Nissan Altima
[9]   Wife next asserts that the trial court abused its discretion in including a 2013

      Nissan Altima into the marital estate because there was no evidence relating to

      it in the record. In claiming that the trial court acted within its discretion in

      including the 2013 Nissan Altima in the marital estate, Husband argues that it

      was included in the Financial Declaration Form Wife submitted to the trial




      2
        In concluding that it was within the trial court’s discretion to value the home at half the
      difference between the purchase price of the marital residence and the remaining balance on
      the mortgage loan, we note the widely-known fact that the housing market took a dip in 2007
      and has yet to completely recover.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 5 of 10
       court in accordance with Marion County Local Rule 49-FR00-504 (“Local Rule

       FR00-504”).


[10]   Local Rule FR00-504(C) provides that “[s]ubject to specific evidentiary

       challenges, the Financial Declaration shall be admissible into evidence upon

       filing.” Despite Father’s claim to the contrary, the language of Local Rule

       FR00-504(C) does not state that the Financial Declaration is self-executing or

       automatically admitted into evidence, but only that the Financial Declaration is

       admissible. Neither party points to any exhibit or testimony indicating that

       Wife’s Financial Declaration Form was actually admitted into evidence. As

       such, the trial court abused its discretion in including the 2013 Nissan Altima in

       the marital estate.


[11]   Furthermore, even if Wife’s Financial Declaration Form had been admitted

       into evidence, the parties’ legal date of separation was December 11, 2011, i.e.,

       the date that Husband filed his petition to dissolve the parties’ marriage. The

       marital estate, i.e., the “marital pot,” incorporates “all of the property acquired

       by the joint effort of the parties before the marriage and up to the date of final

       separation.” Pitcavage v. Pitcavage, 11 N.E.3d 547, 565 (Ind. Ct. App. 2014)

       (internal quotation omitted), reh’g denied. Thus, because Wife could not have

       acquired the 2013 Nissan Altima, a model that was not available for purchase

       until late 2012 or 2013, before the date that Husband filed his petition to

       dissolve the parties’ marriage, the 2013 Nissan Altima should not have been

       included in the parties’ marital estate. See generally, Moore v. Moore, 482 N.E.2d

       1176, 1179 (Ind. Ct. App. 1985) (providing that a vehicle that was acquired by a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 6 of 10
       party to a divorce action after the parties’ final separation was not subject to

       distribution in the marital estate). For this additional reason, it was an abuse of

       the trial court’s discretion to include the 2013 Nissan Altima in the marital

       estate.


                                          IV. Capital Stock
[12]   Wife also asserts that the trial court abused its discretion by failing to include

       $56,107 in capital stock owned by Husband in the marital estate. Again,

       Husband owns and operates a Star Mart “gas station and mini-mart.”

       Appellant’s App. p. 8. It is undisputed that Husband’s ownership interest in

       this business was acquired during the course of the parties’ marriage and should

       be included in the marital estate. Husband argues that the trial court considered

       his interest in the capital stock in finding that Husband had no equity in the

       business. We disagree.


[13]   The trial court’s order indicates that in finding that Husband had no equity in

       the business, the trial court considered an appraisal which valued the business

       and subject property, with all improvements, at $205,000 together with $30,450

       in inventory, as reported on the 2011 corporate tax return. The same corporate

       tax return also indicated that Husband held $56,107 in capital stock. 3 The trial

       court’s order, however, makes no mention of Husband’s interest in the capital




       3
         Review of the appraisal of the value of the business and subject property with all improvements
       indicates that Husband’s interest in the capital stock was not included in the appraisal value.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 7 of 10
       stock. Upon review, we conclude that the trial court’s failure to include

       Husband’s interest in the corporate stock in the marital estate or to explain why

       such interest was excluded from the marital estate amounts to an abuse of the

       trial court’s discretion. As such, on remand, we instruct the trial court to

       include Husband’s $56,107 interest in corporate stock in the marital estate or to

       provide an explanation as to why the trial court excluded Husband’s interest in

       the corporate stock from the marital estate.


                 V. Unequal Distribution of the Marital Estate
[14]   With respect to the division of marital property, Indiana Code section 31-15-7-5

       provides as follows:


               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.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 8 of 10
                        (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.


[15]   In the instant matter, the trial court specifically found that “there should be an

       equal distribution of the marital debts and assets pursuant to Indiana Code § 31-

       15-7-5.” Appellant’s App. p. 12. The parties do not present any argument or

       evidence on appeal that would convince us that an unequal distribution would

       be warranted. Thus, on remand, we instruct the trial court to distribute the

       marital debts and assets equally.



                                               Conclusion
[16]   In sum, we conclude that the trial court acted within its discretion in valuing

       the marital residence. However, we conclude that the trial court abused its

       discretion in including the 2013 Nissan Altima in the marital estate and in

       excluding Husband’s interest in $56,107 in corporate stock from the marital

       estate without providing an explanation as to why Husband’s interest in the

       corporate stock was excluded. On remand, we instruct the trial court to re-

       calculate the value of the marital estate in accordance with our above-stated

       conclusions and to order an equal division of the marital estate.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 9 of 10
[17]   The judgment of the trial court is affirmed in part, reversed in part, and the

       matter is remanded for further proceedings consistent with this memorandum

       decision.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-658 | February 4, 2016   Page 10 of 10
