MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Feb 25 2015, 10:02 am
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.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu                                        Katherine A. Harmon
Alex Beeman                                              Jared S. Sunday
Ciobanu Law, P.C.                                        Mallor Grodner LLP
Indianapolis, Indiana                                    Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael C. Feldhake,                                     February 25, 2015

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A04-1405-DR-250
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Michael D. Keele,
Meryle Feldhake,                                         Judge.
Appellee-Petitioner                                      The Honorable Victoria M.
                                                         Ransberger, Magistrate.
                                                         Cause No. 49D07-1304-DR-15091




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 1 of 15
[1]   Michael Feldhake (Husband) appeals the trial court’s denial of his motion to

      correct error. Husband argues that 1) the trial court erred when it valued

      certain assets; 2) the trial court erred when it found that Husband had been

      allowed to obtain his personal property and did not divide all of the parties’

      personal property; 3) the trial court erred when it failed to find that Meryle

      Feldhake (Wife) had failed to pay certain amounts to Husband as required by

      the provisional order; and 4) the trial court erred when it did not list the tax

      liability incurred by Husband and Wife as a debt incurred during the marriage.

      We affirm the judgment of the trial court, but remand for the limited purpose of

      allowing the trial court to address the matters of payment pursuant to the

      provisional agreement and joint tax liability.


                                                     Facts
[2]   Husband and Wife were married on June 10, 2010, and separated on or about

      April 2013. The marriage did not result in children. On April 24, 2013, Wife

      filed her verified petition for dissolution of marriage, request for preliminary

      hearing, and request for mutual temporary restraining order. She requested that

      her marriage to Husband be dissolved and that the trial court divide the assets.

      On May 7, 2013, Husband filed his verified counter-petition for dissolution of

      marriage, which also requested that the marriage be dissolved and a division of

      assets.


[3]   At some point before the final hearing, the trial court accepted a preliminary

      agreement between the parties, issuing a provisional order. Under the terms of


      Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 2 of 15
      the agreement, Wife was to pay Husband $600 a month to help with the

      mortgage on a property in Indianapolis.1


[4]   Both parties submitted financial declarations on January 14, 2014. Husband

      had previously submitted a financial declaration on May 30, 2013. In addition,

      Husband had prepared a document on April 1, 2013, less than a month prior to

      filing, which listed the value of his assets. The May 2013 filing listed a

      corporate bond in the amount of $30,000. This bond was not included in the

      January 2014 filing. Additionally, the list of assets created in April 2013 listed

      husband’s “coins and collectibles” at a value of $30,000. A list of the valued

      coins created by husband in January 2013 lists the value of the coins alone at

      $20,108. Pet. Ex. 8, 9. However, the financial declaration filed in January

      2014 listed the value of the coins at $8,500.


[5]   A final hearing was held on January 14, 2014. The parties did not request

      specific findings of fact and conclusions of law pursuant to Indiana Trial Rule

      52. The trial court issued its decree dissolving the marriage and dividing certain

      assets on February 12, 2014; in its decree, the trial court made limited sua

      sponte findings of fact. In enumerating and dividing the marital assets, the trial

      court took note of the list of assets created in April 2013, as well as the financial

      declarations Husband filed in May 2013 and January 2014. The trial court

      included the $30,000 corporate bond listed in the May 2013 filing in the marital



      1
       This preliminary agreement is not in the record. However, both parties stipulate to the existence of a
      preliminary or provisional order, and Wife testified to its existence at the final hearing. Tr. p. 38.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015           Page 3 of 15
      estate. It also included the coin collection in the list of marital assets and

      valued it at $20,108.


[6]   The trial court also noted that Wife had provided the court with bank account

      statements showing the value of the accounts on or around the date when the

      petition for dissolution was filed. Based on these statements, the trial court

      found that:

              A total of $34,718.23 existed in Husband’s Fifth Third savings account
              as of the date of filing. Shortly after the divorce was filed, Husband
              depleted this account. Wife did not have access to this account and
              did not benefit from the use of any of the funds in this account.
              Husband failed to present any documentation showing that these
              funds were used for any purpose related to the marriage or for any
              valid purpose.
      Appellant’s App. p. 23. The trial court included the $34,718.23 in the Fifth

      Third savings account in the marital estate.


      In addition to the above findings, the trial court found that Husband had been

      allowed to pick up his “personal property and certain other property” from the

      marital home. Id. at 25. It ordered that the parties should, within ten days,

      exchange any other property that the parties had agreed to transfer or that the

      court had ordered to be transferred.


[7]   On March 17, 2014, Husband filed his motion to correct error, as well as a

      request for a temporary restraining order and preliminary injunction. In his

      motion, Husband included new exhibits regarding his finances, as well as

      affidavits from himself and his son. Wife filed a motion to strike those

      affidavits and exhibits and response to the motion to correct error on April 4,
      Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 4 of 15
      2014. On May 16, 2014, the trial court denied Husband’s motion in its entirety.

      It determined that Husband’s attempts to introduce new evidence or exhibits

      was inappropriate, finding that:

              Husband was non-cooperative during discovery and simply did not
              present evidence at trial as to his accounts. . . . After the trial is over,
              the Decree is entered, Husband seeks to revisit and now add
              documents that clearly should have been provided prior to trial if he
              wanted them admitted or wanted to challenge Wife’s exhibits.
      Id. at 85. The trial court also determined that “Husband’s attempts to detail

      lists of the items that he wanted or now lists as his son’s property is not

      appropriate and not considered by the court.” Id. Wife’s motion to strike was

      granted, and the trial court ordered Husband to pay Wife $650 in attorney fees.

      Husband now appeals.


                                   Discussion and Decision
[8]   Husband argues that the trial court abused its discretion when it denied his

      motion to correct error. He contends that the trial court erred when it 1) valued

      and ascertained certain assets; 2) found that Husband had been allowed to

      obtain his personal property; 3) failed to find that Wife had failed to pay certain

      amounts to Husband as required by the provisional order; and, 4) did not list

      the tax liability incurred by Husband and Wife as a debt incurred during the

      marriage.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 5 of 15
                                       I. Standard of Review
[9]    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.


[10]   Similarly, the standard of appellate review of the trial court’s ruling on a motion

       to correct errors is abuse of discretion. Paragon Family Restaurant v. Bartolini,

       799 N.E.2d 1048, 1055 (Ind. 2003). An abuse of discretion has occurred “if the

       trial court’s decision is against the logic and effect of the facts and

       circumstances before the court or if the court has misinterpreted the law.” Bales

       v. Bales, 801 N.E.2d 196, 198 (Ind. Ct. App. 2004).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 6 of 15
                                      II. Valuation of Assets
[11]   Husband argues that the trial court erred when it valued and ascertained certain

       assets. He maintains that it erred when it found that a corporate bond existed at

       the time the petition for dissolution of marriage was filed, when it valued

       Husband’s savings account, and when it valued Husband’s coin collection. We

       note that the burden of producing evidence as to the value of marital assets is

       upon the parties to the dissolution proceeding. In Re Marriage of Church 424

       N.E.2d 1078, 1082 (Ind. Ct. App. 1981). The trial court has broad discretion in

       ascertaining the value of property in a dissolution action. Keown v. Keown, 883

       N.E.2d 865, 868 (Ind. Ct. App. 2008). Its valuation will not be disturbed absent

       an abuse of that discretion. Hartley v. Hartley 863 N.E.2d 274, 283 (Ind. Ct.

       App. 2007). The trial court does not abuse that discretion if there is sufficient

       evidence and reasonable inferences therefrom that supports the result. Id.


                                         A. Corporate Bond
[12]   Husband first argues that the trial court erred when it determined that a

       corporate bond in the amount of $30,000 was in existence at the time of filing

       and included the bond in the marital estate. He maintains that there was no

       evidence that a corporate bond existed as of the date of filing. However, in the

       financial declaration Husband filed on May 30, 2013, he lists “[c]orporate

       bond, from accident” in the amount of $30,000 as an asset. Appellee’s App. p.

       3. Furthermore, during the final hearing, Husband affirmed that he had listed

       the $30,000 corporate bond in his May 2013 financial declaration. Tr. p. 98.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 7 of 15
[13]   Husband argues that the trial court should not have found that the corporate

       bond was in existence because, while it was discussed during the final hearing,

       “it was not clear from the record when the corporate bond came to existence or

       whether it even still existed.” Appellant’s Br. p. 17. In short, Husband seems

       to be arguing that the trial court should have somehow found specific evidence

       of the value and origin of the bond. This is simply incorrect. As this court has

       previously held:

               [A]ny party who fails to introduce evidence as to the specific value of
               the marital property at the dissolution hearing is estopped from
               appealing the distribution on the ground of trial court abuse of
               discretion based on that absence of evidence. This rule places the
               burden of producing evidence as to the value of the marital property
               where it belongs on the parties, rather than on the trial court. It is
               appropriate to require the parties to bear the burden of gathering and
               presenting to the trial court evidence as to the value of the marital
               property rather than to place upon the trial court the risk of reversal if
               it distributes the marital property without specific evidence of value.
       In re Marriage of Church, 424 N.E.2d at 1081-82.


[14]   Here, the trial court had before it evidence of the existence of the corporate

       bond in the form of Husband’s May 2013 financial declaration, evidence which

       Husband acknowledged at the final hearing. Husband failed entirely to

       produce any contrary evidence suggesting that the bond did not exist or had

       been otherwise disposed of. Therefore, the trial court did not err in listing the

       $30,000 corporate bond among the marital assets.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 8 of 15
                                         B. Savings Account
[15]   Husband also argues that the trial court erred when it valued his Fifth Third

       savings account at $34,718.23, which was the value of the account on March

       31, 2013. He argues that, as the filing date, April 24, 2013, was after the

       valuation date, the trial court abused its discretion by valuing the account prior

       to the date of filing. It is true that, for purposes of choosing a date upon which

       to value marital assets, the trial court may select any date between the date of

       filing the petition for dissolution and the date of the final hearing. Hiser v. Hiser,

       692 N.E.2d 925, 928 (Ind. Ct. App. 1998). However, Husband admitted at trial

       that he had not provided the trial court with any evidence regarding the value of

       the savings account on April 24, 2013, the date of filing.


[16]   Moreover, the trial court determined that Husband had been depleting the

       account. Appellant’s App. p. 23. It found that, shortly after the divorce,

       Husband had drained money from the account, but had provided no

       documentation showing that the funds were used for any valid purpose. Id.

       Wife introduced bank statements showing that on March 31, 2013, the savings

       account contained $34,718.23. Yet, on April 30, 2013, the savings account

       contained $5,115.08 dollars. At the final hearing, Husband testified that the

       approximately $29,603.15 drop in value was attributable to living expenses. Tr.

       p. 96. He admitted that he had provided no documentation regarding the value




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 9 of 15
       of the savings account on the date of filing. Id. at 97. Therefore, we do not find

       that the trial court erred by valuing the savings account at $34,718.23.2


                                            C. Coin Collection
[17]   Husband also argues that the trial court erred when it valued his coin collection

       at $20,108. He maintains that in doing so, the trial court impermissibly valued

       the collection before the date of filing. Husband created a document listing his

       assets for his own purposes on April 1, 2013. Pet. Ex. 8. In that document, he

       listed the value of coins and collectibles at $30,000. Wife also submitted a

       document, created in January 2013, in which Husband individually valued the

       coins in his coin collection, which had a total value of $20,108. As noted

       above, for purposes of choosing a date upon which to value marital assets, the

       trial court may select any date between the date of filing the petition for

       dissolution and the date of the final hearing. Hiser, 692 N.E.2d at 928.


[18]   Here, once again, Husband failed to provide the trial court with any

       documentation regarding the value of the coins on the date of filing. Instead,

       he argues that the trial court, since it was only provided with documentation

       valuing the coins in January 2013, should have relied exclusively on his

       January 2014 financial declaration and his testimony at the final hearing in




       2
         As noted, Husband testified at the final hearing that he used the money in the savings account for living
       expenses. Tr. p. 96. In his brief, Husband now makes a contrary assertion—that he used the money in the
       savings account to purchase the $30,000 corporate bond. No such evidence was presented at the final
       hearing, and we will not entertain evidence of this assertion now.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015          Page 10 of 15
       determining the value of the coins. In his January 2014 financial declaration

       and at the final hearing, Husband asserted that the value of the coin collection

       was $8,500. Appellant’s App. p. 21; Tr. p. 81. However, when questioned by

       opposing counsel, Husband admitted that he had valued the coins at $20,108

       for “[i]nsurance purposes.” Id. at 101. He stated that the value of the coins was

       dependent upon gold and silver prices, which fluctuate. Id. When asked if he

       would sell the coins for $8500, he responded in the negative, but when asked if

       he would sell them for $20,000, he testified that he would. Id. at 101-102.


[19]   Here, the trial court was presented with a document that Husband had prepared

       prior to the filing of the petition for dissolution. Husband did not provide any

       evidence to suggest that the value of the coins had diminished since he himself

       had valued them individually and collectively in January 2013. Under these

       circumstances, we find that the trial court did not err in valuing the coins at

       $20,108.


                 D. Affidavits and Exhibits Outside the Record
[20]   When Husband filed his motion to correct error, he filed affidavits and exhibits

       outside of the record in support of his claims that the trial court erred in valuing

       certain assets. He now asserts that the trial court erred when it struck these

       affidavits and exhibits attached to his motion to correct error, which he

       intended to “clarify matters already before [the trial court].” Appellant’s Br. p.

       17. We note that “motions predicated upon newly discovered material

       evidence are viewed with disfavor.” Kimmel v. State, 418 N.E.2d 1152, 1157


       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 11 of 15
       (Ind. 1981). Whether to grant a new trial on the grounds of newly discovered

       evidence is within the discretion of the trial court. Id. To prevail on a motion

       to correct error based on newly discovered evidence, Husband needed to

       demonstrate that the evidence could not have been discovered and produced at

       trial with reasonable diligence; that the evidence is material, relevant, and not

       merely cumulative or impeaching; that the evidence is not incompetent; that he

       exercised due diligence to discover the evidence in time for final hearing; that

       the evidence is worthy of credit; and, that the evidence raises the strong

       presumption that a different result would have been reached upon retrial.

       Laudig v. Marion Cnty. Bd. of Voters Registration, 585 N.E.2d 700, 712 (Ind. Ct.

       App. 1992).


[21]   Here, Husband makes no argument as to why this evidence is newly discovered

       and he asserts no claim that it could not have been discovered and produced at

       trial with reasonable diligence. The trial court noted in its findings that

       “Husband was non-cooperative during discovery and simply did not present

       evidence at trial as to his accounts.” Appellant’s App. p. 85. The record shows

       that Husband offered no explanation as to the existence of the corporate bond

       on his May 2013 financial declaration or to its absence on his January 2014

       declaration. We agree with the trial court that his motion to correct error was

       an attempt to revisit matters discussed at the final hearing by attaching

       documents that should have been presented at the final hearing but were not.

       Therefore, the trial court did not err in relying exclusively on the evidence




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 12 of 15
       before it at the final hearing, nor did it err when it granted Wife’s motion to

       strike affidavits and exhibits outside the record.


                                       III. Personal Property
[22]   Next, Husband argues that the trial court erred when it determined that he had

       previously been allowed to obtain his personal property from the marital

       residence and failed to divide all personal property from the marital residence.

       The division of marital assets is within the trial court’s discretion, and we will

       reverse only for an abuse of that discretion. O’Connell v. O’Connell, 889 N.E.2d

       1, 10 (Ind. Ct. App. 2008). The challenger must overcome a strong

       presumption that the trial court considered and complied with the applicable

       statute, and that presumption is one of the strongest available on appeal. Id. In

       reviewing the trial court’s division, we will neither reweigh the evidence nor

       assess witness credibility; instead, we will consider only the evidence most

       favorable to the trial court’s disposition of the marital property. Id.


[23]   Here, the trial court divided the marital property in accordance with an

       agreement reached by the parties, determined at the final hearing and through

       previous correspondence between the parties’ counsel. The trial court listed

       specific items in its decree: “chair, end tables/lamps, chest of drawers, queen

       bed, Comcast adapter and remote.” Appellant’s App. p. 25. These were the

       items specifically mentioned at the final hearing and requested by Husband’s

       Attorney in emails to Wife’s Attorney. Tr. p. 118-119; Pet. Ex. 15. The trial




       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 13 of 15
       court ordered in the decree that the above items should be transferred to

       Husband within ten days.3


[24]   Evidence at the final hearing showed that Husband had previously obtained at

       least some personal property from the marital residence, so the trial court’s

       finding is not erroneous. Tr. p. 117. However, even if Husband had not

       previously taken any property from the marital residence, the parties stipulated

       to the items that the parties would transfer during the final hearing, and the trial

       court did not abuse its discretion in ordering the parties to abide by that

       stipulation. Tr. p. 118-119.


                 IV. Wife’s Compliance with Provisional Order
[25]   Husband also argues that the trial court erred when it failed to address his claim

       that Wife had not complied with a provisional order to pay Husband $600 a

       month to help pay the mortgage on a property in Indianapolis. He maintains

       that the trial court was presented with evidence that wife was not current in her

       payments, and that the trial court should have awarded him the amounts not

       paid pursuant to the provisional agreement in the final decree. In general, a

       provisional order terminates when the final decree is entered, subject to right of

       appeal, or when the petition for dissolution or legal separation is dismissed.

       Ind. Code § 31-15-4-14. This means that a provisional order is merged and




       3
        Husband attached affidavits laying claim to certain items of property in his motion to correct error. We will
       not consider these lists, as they are not newly discovered evidence as discussed in paragraphs twenty and
       tweny-one of this memorandum decision.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015          Page 14 of 15
       extinguished in the final decree. Dillon v. Dillon, 696 N.E.2d 85, 87 (Ind. Ct.

       App. 1998).


[26]   At the final hearing, there was some discussion regarding when and if Wife had

       paid Husband according to the terms of the provisional order. However, it is

       clear that Wife testified that she had not paid Husband the $600 for December

       or January. Tr. p. 49-52. Yet, the trial court made no findings with respect to

       the payments required by the provisional order. As such, we remand this case to

       the trial court so that it may amend its final decree to include a finding

       regarding wife’s responsibilities under the provisional order.


                                           V. Tax Liabilities
[27]   Husband and Wife both stipulate to the existence of a tax liability incurred

       during the marriage, and both request that we remand this matter to the trial

       court. The parties testified regarding the tax liability at the final hearing. Tr. p.

       41-42, 64. The trial court also had before it a letter from the Internal Revenue

       Service addressed to Husband and Wife asserting a joint tax liability. Resp. Ex.

       D. The trial court incorrectly determined that the parties had “no joint debts.”

       Appellant’s App. p. 26. Therefore, we remand this case to the trial court to

       determine joint tax liability.


[28]   The judgment of the trial court is affirmed and remanded for the limited

       purposes of determining wife’s responsibilities under the provisional agreement

       and determining joint tax liability.


[29]   Vaidik, C.J., and Riley, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1405-DR-250 | February 25, 2015   Page 15 of 15
