MEMORANDUM DECISION
                                                                  May 07 2015, 10:09 am
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 the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Daniel J. Moore                                          Elizabeth B. Searle
Laszynski & Moore                                        Ball Eggleston PC
Lafayette, Indiana                                       Lafayette, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   May 7, 2015
                                                         Court of Appeals Case No.
Adena Vanderwielen,                                      79A05-1407-DR-330
Appellant-Cross-Appellee,                                Appeal from the Tippecanoe Circuit
                                                         Court.
        v.                                               The Honorable Donald L. Daniel,
                                                         Judge.
                                                         Cause No. 79C01-1302-DR-24
Adam Vanderwielen,
Appellee-Cross-Appellant




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015         Page 1 of 13
[1]   Adena Vanderwielen (Wife) appeals the trial court’s property distribution order

      in the dissolution of her marriage to Adam Vanderwielen (Husband). She

      argues that the trial court erred when it unequally divided the assets and

      excluded marital debt from the property distribution. Husband cross-appeals,

      arguing that the trial court erred when it calculated the amount of debt

      associated with the Indiana marital residence. Finding that the trial court

      issued an inconsistent order that improperly excluded marital debt from the

      marital estate and erroneously valued the marital residence, we reverse and

      remand.


                                                            Facts
[2]   Husband and Wife were married on June 21, 1997, and the marriage produced

      four children.1 Wife filed her petition for legal separation on February 13, 2013,

      and she filed her petition for dissolution of marriage on March 7, 2013. On

      March 11, 2014, the trial court held a hearing to determine, among other

      things, the division of property. The trial court requested proposed findings

      from the parties, and, on April 25, 2014, the trial court issued its order and

      decree.


[3]   In the April 25 order, the trial court made the following relevant sua sponte

      findings:




      1
          The parties do not appeal the portion of the trial court’s order regarding the children.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015              Page 2 of 13
        7. Husband is employed as a school teacher and earns $35,932 per year
        or $691.00 gross per week.
        8. Finding that shortly after the Petition for Dissolution was filed in
        this cause, the Wife was terminated from her employment at Wabash
        Valley Alliance. Since said termination, the wife secured
        unemployment compensation for a period of time, over the objection
        of her former employer, and has also entered into a confidential
        settlement with her former employer that compensat[ed] her to some
        extent for the termination. The Court notes that said settlement shall
        not be part of the property settlement in this case. The husband
        requests that the Court find the wife is voluntar[ily] unemployed or
        under-employed. The Court declines to make such a finding. The
        Wife has regularly pursued new employment since her wrongful
        termination and presented evidence of employment application for
        approximately nine (9) months. The Court also finds that the Wife is
        dealing with anxiety and depression issues. The Court will attribute
        minimum wage earnings to the wife.
                                          ***
        17. The parties owned property located at 12 Parkway Creek Dr.
        Asheville, NC 28803. The property was subject to three outstanding
        loans: (a) Bank of America Mortgage; (b) Mortgage owed to Wife’s
        father; and (c) Bank of America home equity loan. Wife received the
        rents generated from this property while this matter has been pending
        but failed to maintain the minimum monthly payments on the above
        outstanding indebtedness. As a result, Wife’s father foreclosed upon
        his mortgage and was awarded a foreclosure deed to the property.
        Wife testified that her father paid off the first mortgage with Bank of
        America but presented no pay off documentation. To the extent that
        there is any remaining indebtedness owed on the Bank of America first
        mortgage, Wife shall assume and hold Husband harmless upon said
        indebtedness. Furthermore, Wife shall assume and hold Husband
        harmless upon the outstanding Bank of America home equity
        indebtedness in the sum of $29,749.
                                          ***
        23. The 2245 Huron Road, West Lafeyette property shall be set over to
        the Husband at a zero ($0.00) value. The parties agreed on the fair-
        market value of the marital residence being set over to the Husband as
        One Hundred Thirty Thousand Dollars ($130,000). Since the parties’

Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 3 of 13
        separation, the Husband has placed Five Thousand Dollars ($5,000)
        on a Discover credit card to repair the roof on the marital residence.
        The Husband is requesting that the Court place a negative value on the
        2245 Huron Road property of Five Thousand Seven Hundred Twenty-
        Eight Dollars ($5,728) because the Husband claims the indebtedness
        on the property is One Hundred Thirty-Five Thousand Seven Hundred
        and Twenty-Eight Dollars ($135,728). The Court declines to attribute
        Five Thousand Seven Hundred Twenty-Eight Dollars ($5,728) dollars
        of debt on said property. The Husband added at least Five Thousand
        Dollars ($5,000) of value to the property after the date of filing by the
        roof repair and the Court puts the value of the property at zero (0.0).
        In addition, the Court declines to include the Five Thousand Dollars
        ($5,000) of debt on the Menards credit card as part of the marital
        indebtedness since it was incurred after the date of filing.
        24. During the marriage, the Wife incurred student loans in order to
        obtain her master’s degree and Ph.D. degree in psychology. Upon
        completion of her degree, she earned between $60,000 and $70,000 per
        year as a psychologist. The outstanding balance of the student loans at
        the time of the filing of this action was $63,789.00. Husband estimates
        that 25% of that balance, or $15,947.00 was used to defray household
        expenses and the remaining balance was applied to Wife’s tuition and
        the actual cost of education. The court find that the student loans
        contributed to Wife’s greater earning capacity than the Husband. The
        enhanced earning ability of a degree-earning spouse may certainly be
        considered in making a division of the marital assets per I.C. § 31-15-7-
        5. See Roberts v. Roberts, 670 N.E.2d 72, 76-77 (Ind. Ct. App. 1996);
        Pernatt v. Stevens, 598 N.E.2d 616 (Ind. Ct. App. 1992). Accordingly,
        the court finds that [] in order to achieve an equitable balance of the
        marital property, Wife is ordered to assume the outstanding balance of
        her student loan and hold Husband harmless thereon.
        25. The Court determines the marital estate and liabilities consist of
        the following and it should be equally divided:
        WIFE
        Wife’s Merrill Lynch IRA                                   $6,114.54
        Wife’s Merrill Lynch IRA                                   $14,159.69
        Wife’s Laccera                                             $27,764.64
        Wife’s Wabash Valley IRA                                   $13,318.00

Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 4 of 13
              2009 Toyota Prius                                          $9,078.00
              Personal Property                                          $6,035.00
              [Child’s] Oral Surgery                                     ($565.60)
              Student Loans                                              ($63,789.01)
              Joint ATT Universal card                                   ($2,006.72)
              TOTAL                                                      $10,111.52


              HUSBAND
              Husband’s INPRS Teachers Retirement                        $2,818.16
              Husband’s Merrill Lynch Wealth Mgmt. IRA                   $8,385.52
              Husband’s Merrill Lynch Wealth Mgmt. IRA                   $16,687.40
              2006 Toyota Sienna                                         $6,814.00
              1994 Dutchman                                              $6,500.00
              Personal Property                                          $8,650.00
              [Child’s] Oral Surgery                                     ($120.00)
              Joint World Points                                         ($14,384.53)
              Husband’s Discover[y]Card                                  ($597.74)
              TOTAL                                                      $34,752.81
              To equalize the property settlement, the Husband shall pay to the Wife
              the sum of Twelve Thousand Ninety-seven and 85/100 Dollars
              ($12,097.85).
      Appellant’s App. p. 41-48.


[4]   On May 21, 2014, Husband filed his motion to correct error. He made two

      requests relevant to this appeal in that motion: 1) that the trial court find that

      the marital residence should be given a negative value in the amount of

      $5,728.00; and 2) that the trial court use only the amount of Wife’s student

      loans used to defray household expenses to equalize the assets and the debt.

      On May 23, 2014, Wife filed her motion to correct error, which requested only
      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 5 of 13
      that the trial court consider the $29,749 of indebtedness (Bank of America Debt)

      assigned to her as a result of the foreclosure of the North Carolina residence as

      mutual indebtedness and consider it in its division of the marital estate.


[5]   On June 3, 2014, the trial court held a hearing on the parties’ motions to correct

      error. On June 19, 2014, the trial court issued an amended order and degree

      granting, in part, Husband’s motion to correct error and denying Wife’s motion

      to correct error. In the amended order, the trial court included only a portion of

      Wife’s student loan debt in the marital estate. As in the original order, the trial

      court found that the marital estate should be divided equally. The amounts

      Husband and Wife received also changed. Under the original order and decree,

      Wife received approximately negative $7,500 and Husband received

      approximately $22,600. Under the amended order and decree, Wife receives

      approximately negative $31,200 and Husband receives approximately $46,300.

      Wife now appeals and Husband cross-appeals.


                                   Discussion and Decision
[6]   Wife argues that the trial court erred in excluding marital debt from the marital

      estate and in ordering an unequal division of the estate. She argues that the trial

      court erred regarding the North Carolina property and maintains that it should

      have divided the Bank of America Debt equally and included that debt in the

      marital estate. In addition, she argues that the trial court erred when it

      excluded all but $15,947 of her student loan debt from the marital estate and

      determined that she had a higher earning potential than Husband. Husband


      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 6 of 13
      argues that the trial court erred when it found the marital residence to have a

      value of zero.


                                      I. Standard of Review
[7]   Where, as here, the trial court issues findings of fact sua sponte, the specific

      findings control only the conclusions they cover, while a general judgment

      standard applies to any issue on which the court has not entered findings.

      Scoleri v. Scoleri, 766 N.E.2d 1211, 1215 (Ind. Ct. App. 2002). In reviewing the

      judgment, we will determine if the evidence supports the findings, and then,

      whether those findings support the conclusion and judgment. Id. This Court

      will only reverse a judgment when it is shown to be clearly erroneous. Dewbrew

      v. Dewbrew, 849 N.E.2d 636, 640 (Ind. Ct. App. 2006). In determining the

      validity of the findings or judgment, we consider only the evidence favorable to

      the judgment and all reasonable inferences to be drawn from that evidence; we

      do not reweigh the evidence or assess the credibility of witnesses. Id. A

      judgment is clearly erroneous if it applies the wrong legal standard to properly

      found facts. Id. A general judgment may be affirmed on any theory supported

      by the evidence presented at trial. Id.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 7 of 13
                       II. Marital Debt and Estate Distribution
[8]   Wife argues that the trial court erred when it excluded the Bank of America

      Debt and the majority of her student loan from the marital estate.2 She argues

      that, in excluding these debts from the marital estate, the trial court violated the

      “one-pot” theory articulated in Thompson v. Thompson, 811 N.E.2d 888, 912

      (Ind. Ct. App. 2004). In Thompson, this Court explained the “one-pot” theory

      as follows:

               The division of marital property in Indiana is a two-step process. The
               trial court must first determine what property must be included in the
               marital estate. Included within the marital estate is all the property
               acquired by the joint effort of the parties. With certain limited
               exceptions, this “one-pot” theory specifically prohibits the exclusion of
               any asset from the scope of the trial court’s power to divide and award.
               Only property acquired by an individual spouse after the final
               separation date is excluded from the marital estate.
      Id. (internal citations removed). Wife contends that the trial court failed to

      follow the first step of the process as outlined in Thompson when it allocated

      marital debts—the Bank of America Debt and her student loan—specifically to

      Wife and then failed to include these debts in the marital estate.


[9]   Wife also argues that this exclusion results in an inconsistent order and decree

      and an unequal distribution of the assets. In Thompson, this Court also

      explained how the trial court is to divide the marital estate: “[a]fter determining




      2
       Husband does not argue that the Bank of America Debt or Wife’s student debts are not marital debts. His
      brief concedes that the trial court distributed the property unequally. His argument is that the trial court was
      correct in its distribution of property and any error in excluding the debts from the property is harmless.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015                   Page 8 of 13
       what constitutes marital property, the trial court must then divide the marital

       property under the presumption that an equal split is just and reasonable. If the

       trial court deviates from this presumption, it must state why it did so.” Id. at

       912-13. (internal citations removed). Wife points us to finding twenty-five of

       the trial court’s order and decree, in which it adhered to the presumption that

       an equal split was just and reasonable and found that that marital estate “should

       be equally divided.” Appellant’s App. p. 68. She argues that the trial court’s

       order is inconsistent because it states that the marital estate should be divided

       equally, but then fails to include the Bank of America Debt and her student

       loan debt in the marital estate.


[10]   It is within the discretion of the trial court to order an unequal division of

       property. Indiana Code section 31-15-7-5 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


       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 9 of 13
                       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.
       Therefore, if the trial court finds that an unequal distribution is justified, it

       “must enter findings explaining why it awarded an unequal division of

       property.” Lulay v. Lulay, 591 N.E.2d 154, 155-56 (Ind. Ct. App. 1992).


[11]   In addition, as Husband points out, even in cases where trial courts have

       erroneously excluded assets from the marital estate, we have affirmed the

       property division when the error was harmless. Husband directs us to Helm v.

       Helm, in which a panel of this court upheld a trial court’s division of property

       when the trial court had erroneously excluded lottery payments from the

       marital estate but the error was harmless. 873 N.E.2d 83, 90 (Ind. Ct. App.

       2007). In finding harmless error, we determined that “the trial court otherwise

       satisfied the requirements of Indiana Code section 31-15-7-5 and its reasons for

       awarding a greater share to [the husband] fully justify the unequal division.” Id.


[12]   However, in the instant case, the trial court issued an order that is internally

       inconsistent. The trial court in Helm excluded assets from the marital estate and

       found than an unequal division was warranted. Id. at 90. Here, the trial court

       excluded marital debts from the marital pot and also explicitly stated that it

       found that the marital estate should be divided equally. We cannot reconcile

       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 10 of 13
       this contradiction and, therefore, we cannot discern what the trial court

       intended. Further, we note that the findings supporting the original order and

       decree and the findings supporting the amended order and decree are almost

       identical. Yet, the orders have drastically different outcomes. Under the

       original order and decree, Wife received approximately negative $7,500 and

       Husband received approximately $22,600. Under the amended order and

       decree, Wife receives approximately negative $31,200 and Husband receives

       approximately $46,300. As noted above, it is within the trial court’s discretion

       to order an unequal division of property, and the trial court may determine that

       an unequal division of the marital estate is justified in the instant case. Ind.

       Code § 31-15-7-5. However, as we cannot discern the intent of the trial court,

       we remand the case with instructions to include the Bank of America Debt and

       Wife’s entire student loan debt in the marital estate and divide the estate within

       its discretion.


                           III. Value of the Marital Residence
[13]   In his cross-appeal, Husband argues that the trial court erred when it calculated

       the amount of debt associated with the Indiana marital residence. As noted

       above, the trial court determined that the marital residence would have a value

       of zero.


[14]   The record shows that the parties agreed the value of the residence would be

       $130,000. Tr. p. 200. Husband and Wife agreed that the loans on the home

       were in the approximate amounts of $94,000 and $41,195.33. Appellee’s App.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 11 of 13
       p. 26. Therefore, Husband argues that the evidence before the trial court

       indicated that the house should have had a negative value of approximately

       $5,000.


[15]   Husband argues that the trial court confused the cost of some home repairs

       Husband made to the property after the separation with the actual negative

       equity in the home. It appears from the record that such confusion may have

       occurred. In its finding regarding the marital residence, the trial court stated:

               Since the parties’ separation, the Husband has placed Five Thousand
               Dollars ($5,000) on a Discover credit card to repair the roof on the
               marital residence. The Husband is requesting that the Court place a
               negative value on the 2245 Huron Road property of Five Thousand
               Seven Hundred Twenty-Eight Dollars ($5,728) because the Husband
               claims the indebtedness on the property is One Hundred Thirty-Five
               Thousand Seven Hundred and Twenty-Eight Dollars ($135,728). . . .
               The Husband added at least Five Thousand Dollars ($5,000) of value
               to the property after the date of filing by the roof repair and the Court
               puts the value of the property at zero (0.0).
       Appellant’s App p. 67. However, both Husband and Wife stated that the equity

       in the home was approximately negative $5,000, a value which had nothing to

       do with home repairs made subsequent to the separation. We cannot tell if the

       court has confused these amounts, and all the evidence in the record suggests

       that the value of the home was approximately negative $5,000. Therefore, we

       reverse and order that the trial court value the Indiana marital residence at

       negative $5,195.33.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 12 of 13
[16]   We reverse the judgment of the trial court and remand for proceedings

       consistent with this opinion.


[17]   Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-DR-330 | May 7, 2015   Page 13 of 13
