MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
shall not be regarded as precedent or                        Oct 30 2015, 8:46 am
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
Karen A. Wyle                                       David A. Smith
Bloomington, Indiana                                McIntyre & Smith
                                                    Bedford, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Aundreia Dant,                                           October 30, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         51A01-1504-DR-128
        v.                                               Appeal from the Martin Circuit
                                                         Court
Anthony J. Dant,                                         The Honorable Gregory A. Smith,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         51C01-1310-DR-250



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 1 of 11
[1]   Aundreia Dant (“Wife”) appeals the division of marital property in the

      dissolution of her marriage to Anthony Dant (“Husband”). Finding no abuse

      of discretion, we affirm.


                                 Facts and Procedural History
[2]   Husband and Wife married in 1991 and the marriage was dissolved in 2014.

      Husband has served with the Martin County Sheriff’s Department since 1985

      and was the elected sheriff from 2003 through 2010. As elected sheriff,

      Husband earned about $85,000 per year. Afterwards his income decreased to

      about $32,000 as chief deputy, and then to about $28,000 as a patrol deputy,

      which was his position at the time of the dissolution hearing. Wife has been

      employed by General Motors since 1992 and since 2010 her annual earnings

      have been around $100,000.


[3]   Both parties had pension plans, the value of which they stipulated. Husband’s

      was valued at about $1,100,000 and at the time of the dissolution he was

      drawing about $5000 per month. He also had a deferred compensation plan

      valued at about $112,000 and an IRA valued at about $107,000. Wife’s GM

      pension was valued at about $117,000, but she cannot draw from it until she

      retires. At the time of the dissolution hearing she was forty-seven and she

      cannot retire until she is fifty-five. Wife also had a savings plan she

      characterized as a 401K, which was valued at about $293,000.


[4]   The parties owned four parcels of real estate. Two, including the marital

      residence, were awarded to Wife and the other two to Husband.

      Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 2 of 11
[5]   The trial court allocated 69% of the net marital estate to Husband and 31% to

      Wife, but noted that “when assets husband had prior to the marriage . . . are

      excluded, the division is approximately 53% to husband and 47% to wife.”

      (App. at 26.) Additional facts will be provided as necessary.


                                     Discussion and Decision
[6]   The division of marital property is within the sound discretion of the trial court,

      and we will reverse only for an abuse of discretion. Love v. Love, 10 N.E.3d

      1005, 1012 (Ind. Ct. App. 2014). 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 if the trial court has misinterpreted the law or

      disregarded evidence of factors listed in the controlling statute. Id. When we

      review a claim that the trial court improperly divided marital property, we

      consider only the evidence most favorable to the trial court’s disposition of the

      property. Id. Even if the facts and reasonable inferences might allow for a

      different conclusion, we will not substitute our judgment for that of the trial

      court. Id.


[7]   Division of marital property is highly fact sensitive and we review a trial court’s

      discretion in dividing marital property by considering the division as a whole,

      not item by item. Id. We will not weigh evidence, but will consider the

      evidence in a light most favorable to the judgment. Id. The party challenging

      the division of marital property must overcome a strong presumption that the

      court considered and complied with the applicable statute. Id. at 1012-13.


      Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 3 of 11
      Thus, we will reverse a property distribution only if there is no rational basis for

      the award. Id. at 1013.


[8]   All marital property goes into the marital pot for division, whether it was

      owned by either spouse before the marriage, acquired by either spouse after the

      marriage and before final separation of the parties, or acquired by their joint

      efforts. Id. (citing Ind. Code § 31-15-7-4(a)). This “one-pot” theory ensures that

      all assets are subject to the trial court’s power to divide and award. Id.


[9]   An equal division of marital property is presumed to be just and reasonable, but

      this presumption may be rebutted if a party presents relevant evidence regarding

      the following factors: (1) each spouse’s contribution to the acquisition of

      property; (2) acquisition of property through gift or inheritance prior to the

      marriage; (3) the economic circumstances of each spouse at the time of

      disposition; (4) each spouse’s dissipation or disposition of property during the

      marriage; and (5) each spouse’s earning ability. Id. (citing Ind. Code § 31-15-7-

      5). When ordering an unequal division, the trial court must consider all of the

      factors set forth in the statute. Id. A trial court abuses its discretion in

      considering a factor in isolation from the other four factors, but it is not

      required to explicitly address each factor. Id. However, on review we must be

      able to infer from the trial court’s findings that all the statutory factors were

      considered. Id.




      Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 4 of 11
[10]   The trial court entered Findings of Fact and Conclusions of Law sua sponte. 1 In

       such a situation, the specific factual findings control only the issues they cover,

       and a general judgment standard applies to issues on which there are no

       findings. Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013), aff’d on reh’g,

       4 N.E.3d 666 (Ind. Ct. App. 2013). It is not necessary that each and every

       finding be correct, and even if one or more findings are clearly erroneous, we

       may affirm the judgment if it is supported by other findings or is otherwise

       supported by the record. Id. We may affirm a general judgment with sua sponte

       findings on any legal theory supported by the evidence introduced at trial. Id.

       Although sua sponte findings control as to the issues on which the court has

       found, they do not otherwise affect our general judgment standard of review,

       and we may look both to other findings and beyond the findings to the evidence

       of record to determine if the result is against the facts and circumstances before

       the court. Id.


[11]   As for review of the accuracy of findings that have been entered, we first

       consider whether the evidence supports them. Id. Second, we consider whether

       the findings support the judgment. Id. We will disregard a finding only if it is

       clearly erroneous, which means the record contains no facts to support it either

       directly or by inference. Id. A judgment also is clearly erroneous if it relies on




       1
        The parties disagree as to whether the findings and conclusions were entered pursuant to a Trial Rule 52
       motion or sua sponte. At the dissolution hearing the trial court referred to a motion for findings, and
       Husband’s counsel said, “We apologize, Your Honor. We really meant proposed decrees.” (Tr. at 115.) We
       will accordingly review the judgment as if the findings and conclusions were entered sua sponte.

       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015       Page 5 of 11
       an incorrect legal standard, and we do not defer to a trial court’s legal

       conclusions. Id. at 998-99.


                              Wife’s Contributions to Husband’s Pension

[12]   The trial court awarded all of Wife’s pension and employer profit-sharing plan

       to her, and it awarded all of Husband’s pension, deferred compensation plan

       funds, and IRA to him. Wife argues the trial court erred because it ignored

       evidence of her “monetary and nonmonetary contributions to the accrual of

       Husband’s pensions.” (Br. of Appellant at 14.) We cannot find an abuse of

       discretion.


[13]   Wife states “[i]t is presumed that where the parties were married while one

       accumulated pension eligibility, that pension was acquired through joint

       efforts,” citing as authority for that statement Elkins v. Elkins, 763 N.E.2d 482,

       485 (Ind. Ct. App. 2002). (Br. of Appellant at 14) (emphasis added). She next

       asserts “[t]he presumption that spouses contribute to each others’ pensions is so strong”

       that even pensions vesting after legal separation are treated as marital property.

       (Br. of Appellant at 14) (citing In re Marriage of Adams, 535 N.E.2d 124, 127

       (Ind. 1989), reh’g denied).


[14]   Neither Elkins nor Adams establishes, or even acknowledges, a legal

       “presumption” that a spouse contributes to the other spouse’s pension or that a

       spouse’s pension is “presumed” to have been acquired through the spouses’




       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 6 of 11
       joint efforts. 2 We must therefore decline to reverse on the ground there was a

       legal presumption in Wife’s favor that Husband was obliged to rebut.


[15]   We acknowledge the evidence to which Wife directs us regarding her monetary

       and non-monetary contributions to the marriage, but we are aware of no

       authority supporting the premise the trial court was required to consider those

       contributions to be “contributions to the accrual of Husband’s pension.” (Br. of

       Appellant at 14.) 3 As we will not substitute our judgment for that of the trial

       court even if the facts and reasonable inferences might allow for a different

       conclusion, Love, 10 N.E.3d at 1012, we cannot reverse on that ground.


                                                  The Family Farm

[16]   There were four pieces of real estate included in the marital estate. The marital

       home and a rental property were awarded to Wife, and a farm and property the

       couple bought from Husband’s mother’s estate were awarded to Husband.

       Wife challenges both awards to Husband.




       2
         Adams says only “[i]t may be reasonably argued that in many marriages the joint efforts of both spouses are
       invested so that one of them may earn pension rights.” In re Marriage of Adams, 535 N.E.2d 124, 127 (Ind.
       1989). The Adams Court found there was evidence Husband’s pension was acquired by the parties’ joint
       efforts, but it did not specify what that evidence was.
       3
        Wife suggests the trial court should have applied a coverture fraction, but she does not explicitly argue it
       was reversible error for the court to decline to do so.
         The “coverture fraction” formula is one method a trial court may use to distribute pension or retirement
       plan benefits to the earning and non-earning spouses. Under this methodology, the value of the retirement
       plan is multiplied by a fraction, the numerator of which is the period of time during which the marriage
       existed (while pension rights were accruing) and the denominator of which is the total period of time during
       which pension rights accrued. In re Marriage of Preston, 704 N.E.2d 1093, 1098 n.6 (Ind. Ct. App. 1999). As
       the trial court did not abuse its discretion in allocating the pensions as it did, it was not obliged to apply a
       coverture fraction.

       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015               Page 7 of 11
[17]   Wife argues the trial court’s allocation of property referred to as “the family

       farm” was an abuse of discretion 4 because its findings regarding the farm “ran

       largely or entirely counter to the undisputed evidence.” (Br. of Appellant at

       18.) The trial court awarded the farm to Husband after concluding it was

       purchased before the marriage with Husband’s resources, Wife did not work on

       the farm or contribute to its upkeep, and Husband did not place Wife’s name on

       the deed.


[18]   The trial court heard testimony from Wife that Husband bought the property

       shortly before he and Wife started dating. Husband testified he “bought and

       paid for it before [Wife] ever entered into the relationship with me.” (Tr. at 82.)

       We acknowledge Wife offered ample evidence to the contrary, but we may not

       reweigh it or rejudge the credibility of the witnesses. The trial court’s allocation

       of the farm was not an abuse of discretion. 5


                                        Property Treated as Inheritance

[19]   The trial court allocated to Husband a residence Husband’s mother owned and

       that Husband and Wife later bought from his mother’s estate. In making the




       4
         We remind Wife that a trial court’s disposition of the marital estate is to be considered as a whole, not item
       by item. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).
       5
         The trial court’s statement “there was no evidence” Wife worked on the farm or contributed to its upkeep,
       (App. at 21), appears incorrect, as Wife testified she did both. However, we decline to reverse on that
       ground.
       We note the evidence on which Wife relies is her own testimony. It is within the province of the trial court to
       believe or disbelieve the testimony of any witness. Inman v. Turner, 27 N.E.3d 771, 774 (Ind. Ct. App. 2014),
       trans. denied. We further note Wife offers no legal authority to support the premise the trial court was obliged
       to credit her for her contributions to the farm after Husband bought it.

       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015             Page 8 of 11
       allocation, the trial court said “while not strictly an inheritance, the said real

       property is in the nature of an inheritance from Husband’s family. I.C. 31-15-7-

       5(2)(B).” (App. at 21.)


[20]   Wife notes the statute the trial court cited, which addresses evidence that can

       rebut the presumption an equal division of the marital property is just and

       reasonable, refers to “[t]he extent to which the property was acquired by each

       spouse . . . through inheritance or gift.” Ind. Code § 31-15-7-5. Because the

       statute refers to property acquired by “each spouse,” she argues, it cannot apply

       to property purchased by both spouses with marital funds. Therefore, she

       argues, “[t]reating this evidentiary factor as relevant to the cited statutory factor

       was error and an abuse of discretion.” (Br. of Appellant at 20.)


[21]   Even if the trial court erred in its suggestion the property was in the nature of

       inherited property, we cannot reverse on that ground. “It is well settled that

       when an error did not affect the substantial rights of the complaining party,

       such error will be considered harmless and not be grounds for reversal.” Cornett

       v. Cornett, 412 N.E.2d 1232, 1236 (Ind. Ct. App. 1980).


[22]   Wife asserts, without explanation or citation to the record or to legal authority,

       that the trial court “did not award Wife any other marital assets, or relieve her

       from any other marital debt, to compensate for this award.” (Br. of Appellant

       at 20.) The dissolution decree indicates the property had a fair market value of

       $120,000, and mortgage indebtedness of $120,000, both of which we were




       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 9 of 11
       assigned to Husband. We cannot say Wife was prejudiced to the extent the trial

       court declined to “compensate” her for that award.


                                         Trial Court’s “Intentions”

[23]   As explained above, we find no abuse of discretion in the trial court’s

       distribution of the marital assets. Wife does not point to any specific

       mathematical errors in that decree, but she appears to argue the trial court “did

       not intend such an unequal disposition as it actually imposed.” (Appellant’s

       Reply Br. at 13.) We decline to find reversible error on the premise the trial

       court did not know what it was doing or intend to do what it did.


[24]   The trial court’s decree included a detailed three-page listing of each debt and

       asset, what each was worth, and how each was disposed. It calculated the “net

       marital estate,” (App. at 31), and indicated 69% was allocated to Husband and

       31% to Wife. On a separate line after that, it listed amounts and percentages

       Wife characterizes as numbers “purporting to show the percentage each spouse

       would have received if the marital estate had not included” certain real estate.

       (Br. of Appellant at 21.) Those numbers reflected a percentage distribution of

       53% to Husband and 47% to Wife.


[25]   We decline to hold the trial court’s intention was reflected by what it did not do

       rather than what it did do, and absent a showing of a mathematical

       miscalculation, we find no error. See In re Marriage of Perez, 7 N.E.3d 1009,

       1012 (Ind. Ct. App. 2014) (Wife’s arguments that the trial court did not give

       sufficient weight to the income disparities of the parties and her allegation her


       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 10 of 11
       testimony was more credible than Husband’s were invitations for us to reweigh

       the evidence and judge witness credibility, which we cannot do.).


                                   The Parties’ Future Income Streams

[26]   The trial court allocated to Husband all of his pension and to Wife all of hers,

       and valued each pension at the amount to which the parties stipulated. Wife

       now appears to argue error because the trial court made “optimistic

       assumptions,” (Br. of Appellant at 23), about her future earning ability, but it

       did not make equally optimistic assumptions about Husband. We decline to

       find an abuse of discretion in the trial court’s acceptance of the pension values

       to which the parties stipulated, nor do we find the trial court’s “assumptions”

       necessarily amount to unreasonable inferences the trial court might have drawn

       from evidence of Husband’s and Wife’s ages, earning history, and career

       prospects. As we will not substitute our judgment for that of the trial court even

       if the facts and reasonable inferences might allow for a different conclusion,

       Love, 10 N.E.3d at 1012, we decline to reverse on that ground.


                                                 Conclusion
[27]   As the trial court’s distribution of the marital property was supported by the

       record and was not an abuse of discretion, we affirm.


[28]   Affirmed.


       Crone, J., and Bradford, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 51A01-1504-DR-128 | October 30, 2015   Page 11 of 11
