MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                       Feb 24 2016, 7:52 am
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jordan L. Tandy                                          Jeffry G. Price
Mark A. Frantz                                           Peru, Indiana
Tiede Metz Downs Tandy & Petruniw,
P.C.
Wabash, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Henry Shell,                                             February 24, 2016
Appellant-Respondent,                                    Court of Appeals Cause No.
                                                         52A05-1505-DR-456
        v.                                               Appeal from the Miami Superior
                                                         Court
Vicki Shell,                                             The Honorable Daniel C. Banina,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         52D02-1310-DR-291



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 1 of 12
                                             Case Summary
[1]   Henry Shell appeals the trial court’s division of property in the dissolution of his

      marriage to Vicki Shell. We affirm.


                                                    Issues
[2]   Henry raises two issues, which we restate as:


              I.       whether the trial court properly valued the marital
                       property; and

              II.      whether the trial court properly divided the marital
                       property.


                                                     Facts
[3]   Henry and Vicki were married in 1966. As of 2014, Henry had been retired on

      disability for approximately twenty years and received a pension. Vicki worked

      and paid most of the household bills. She retired in 2012 and received pensions

      from two previous employers, Schneider Electric and Moore Wallace. During

      the parties’ marriage, Henry repeatedly filed bankruptcy due to credit card bills

      that he incurred. The mortgage on the parties’ residence was caused by Henry

      again incurring credit card debt that they were unable to pay. Henry also made

      several personal injury claims during the marriage and placed his settlements in

      a bank account in Kentucky that he shared with his brother. In 2002, Vicki

      inherited a one-ninth interest in property in Kentucky that had been owned by

      her mother. Henry apparently inherited an interest in an oil and gas lease in

      Kentucky at some point during the marriage.


      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 2 of 12
[4]   Vicki filed a petition for dissolution of marriage in October 2013. The trial

      court held a final hearing in May 2014 and dissolved the parties’ marriage. The

      trial court took the division of property under advisement and held a further

      hearing in September 2014 regarding the parties’ marital assets and the division

      of property. In December 2014, the trial court entered findings of fact and

      conclusions thereon dividing the marital assets. Henry filed a motion to correct

      error, which the trial court denied.


                                                  Analysis
[5]   The parties here requested findings of fact and conclusions thereon under

      Indiana Trial Rule 52(A), which prohibits this court from setting aside the trial

      court’s judgment “unless clearly erroneous.” In re Marriage of Nickels, 834

      N.E.2d 1091, 1095 (Ind. Ct. App. 2005). When a trial court has made special

      findings of fact, its judgment is “clearly erroneous” only if its findings of fact do

      not support its conclusions or its conclusions do not support its judgment. Id.

      We give due regard to “the opportunity of the trial court to judge the credibility

      of the witnesses.” Id.


[6]   Henry first argues that the trial court adopted verbatim Vicki’s proposed

      findings of fact and conclusions thereon. When a trial court accepts verbatim a

      party’s proposed findings of fact and conclusions thereon, that practice

      “weakens our confidence as an appellate court that the findings are the result of

      considered judgment by the trial court.” Cty. of Lake v. Pahl, 28 N.E.3d 1092,

      1100 (Ind. Ct. App. 2015), trans. denied. It is not uncommon or per se improper,


      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 3 of 12
      however, for a trial court to enter findings that are verbatim reproductions of

      submissions by the prevailing party. Id. Although we do not encourage the

      wholesale adoption of a party’s proposed findings and conclusions, the critical

      inquiry is whether such findings, as adopted by the court, are clearly erroneous.

      Id. Here, the trial court did not accept verbatim Vicki’s proposed findings of

      fact and conclusions thereon. Although Vicki proposed a $25,000 equalization

      payment, the trial court ordered only a $10,000 equalization payment.

      Moreover, the relevant issue is whether the trial court’s findings of fact and

      conclusions thereon are clearly erroneous.


                                                 I. Valuation

[7]   Henry first challenges the trial court’s valuation of several marital assets. The

      trial court’s valuation of marital assets will only be disturbed for an abuse of

      discretion. Nickels, 834 N.E.2d at 1095. As long as evidence is sufficient and

      reasonable inferences support the valuation, an abuse of discretion does not

      occur. Id. We will not reweigh the evidence, and we will consider the

      evidence in the light most favorable to the judgment. 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.


[8]   Henry first argues that the trial court abused its discretion by failing to assign a

      value to Vicki’s one-ninth interest in a Kentucky property that she inherited

      from her mother and shares with her siblings. With respect to this property, the

      trial court found:


      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 4 of 12
               It appears that both parties received some sort of property by
               inheritance from their family. The court received no particular
               information with regard to the value of the same. [Vicki]
               received a one ninth share in her mother’s home, but there is no
               indication that she receives any income or benefit from it and the
               court received no specific information as to the value of the real
               estate. [Vicki’s] mother died in 2002.


               It appears that [Henry] received an interest from an oil and gas
               lease also in the state of Kentucky. He may have received money
               or other things of value by inheritance. Again, the court was not
               provided with any specific information about those assets or their
               value.


      App. pp. 7-8.


[9]   Our supreme court has held that, where “the parties fail to present evidence as

      to the value of assets, it will be presumed that the trial court’s decision is

      proper.” Quillen v. Quillen, 671 N.E.2d 98, 103 (Ind. 1996). It is incumbent on

      the parties to present evidence of the value of property to the trial court, and

      trial courts do not err in failing to assign values to property where no evidence

      of such value was presented. Balicki v. Balicki, 837 N.E.2d 532, 537-38 (Ind. Ct.

      App. 2005), trans. denied. Henry cannot now argue concerning the trial court’s

      failure to assign a value to Vicki’s interest in the Kentucky property.1




      1
        Henry argues that the Kentucky property should have been valued according to Vicki’s testimony that the
      marital residence was “worth a whole lot more [than the Kentucky property], three time [sic] as much as that
      house in Kentucky.” Tr. p. 33. Contrary to Henry’s argument, Vicki’s vague testimony is simply insufficient
      to establish a value of her interest in the Kentucky property. Henry also suggests that Vicki’s occasional use

      Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016           Page 5 of 12
[10]   Henry next argues that the trial court failed to assign a value to Vicki’s two

       pensions. Indiana Code Section 31-15-7-4 requires all property to be considered

       in the marital estate. Fobar v. Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). With

       certain limited exceptions, the “one-pot” theory of Indiana family law

       specifically prohibits the exclusion of any asset from the scope of the trial

       court’s power to divide and award. Balicki, 837 N.E.2d at 539-40.


[11]   Henry presented evidence that, as of October 3, 2013, Vicki’s Schneider Electric

       pension had a value of $69,316, Vicki’s Moore Wallace pension had a value of

       $24,457, and Henry’s GenCorp pension had a value of $33,735. The trial court

       did not mention this evidence in its findings of fact or conclusions thereon.

       However, the trial court did note that Vicki received “slightly more from her

       two pensions than [Henry] does.” App. p. 7. The trial court ordered that each

       party have their own pensions as their sole and separate property. “Valuing a

       pension requires a court to determine (1) what evidence must be presented to

       establish the value of the benefit, (2) what date must be used to assign a dollar

       amount to the benefit, and (3) how much of the benefit’s value was the result of

       contributions made after the final separation date.” Leonard v. Leonard, 877

       N.E.2d 896, 900 (Ind. Ct. App. 2007). The trial court failed to engage in this

       analysis. To the extent that the trial court failed to consider the present value of

       the pensions, it was in error.




       of the Kentucky property is evidence of a non-monetary benefit. Again, Henry presented no evidence
       concerning the value of such a non-monetary benefit.

       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016      Page 6 of 12
[12]   Finally, Henry argues that the trial court erred by excluding the mortgage from

       the marital debts. The trial court ordered that Henry have the marital residence

       subject to the mortgage thereon as his sole and separate property. In the

       context of discussing Henry’s dissipation of assets and hiding assets, the trial

       court later noted: “The court is not taking the existing mortgage, claimed by

       Husband, into account because it appears to be entirely the result of Husband’s

       credit card spending.” App. p. 12. It is not entirely clear from the findings of

       fact or conclusions thereon that the trial court excluded the mortgage from the

       marital debts. However, to the extent that it did so, the trial court erred.


                                     II. Division of Marital Property

[13]   Not every error in the division of martial assets, however, warrants reversal.

       Elkins v. Elkins, 763 N.E.2d 482, 487 (Ind. Ct. App. 2002). 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. Helm v. Helm, 873

       N.E.2d 83, 89 (Ind. Ct. App. 2007). When the trial court’s reasons for

       awarding certain assets to one party support an unequal division of property,

       we will affirm despite an erroneous exclusion of property. Id.


[14]   We review a trial court’s division of a marital estate for an abuse of discretion.

       J.M. v. N.M., 844 N.E.2d 590, 602 (Ind. Ct. App. 2006), trans. denied. An abuse

       of discretion occurs when a trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Id. In reviewing a trial court’s

       division of a marital estate, we consider only the evidence most favorable to the

       trial court, and we may not reweigh the evidence or reassess the credibility of
       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 7 of 12
       witnesses. Id. A trial court’s discretion in dividing marital property is to be

       reviewed by considering the division as a whole, not item by item. Fobar, 771

       N.E.2d at 59. The party challenging the trial court’s division of the marital

       estate must overcome a strong presumption that it considered and complied

       with the applicable statute. J.M., 844 N.E.2d at 602.


[15]   Indiana Code Section 31-15-7-5 provides that the trial 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 52A05-1505-DR-456 | February 24, 2016   Page 8 of 12
               (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.


       Ind. Code § 31-15-7-5.


[16]   Henry argues that the trial court failed to specifically state that it was deviating

       from an equal division of the marital property. However, the order as a whole

       clearly indicates that the trial court was deviating from the statutory

       presumption of an equal division. The trial court made findings relevant to

       each of the five factors listed in Indiana Code Section 31-15-7-5.


[17]   As for the contribution of each spouse to the acquisition of the property, the

       trial court found that Henry had been disabled and unable to work for nearly

       twenty years and that Vicki’s income had paid most of the household bills. As

       for inheritances, although Vicki inherited a one-ninth interest in a Kentucky

       property and Henry received an interest in an oil and gas lease, evidence

       concerning the value of those inheritances was not presented by the parties.

       Concerning the economic circumstances of the parties and their earning

       abilities, the trial court noted that both parties were retired and that Vicki’s

       health was not good. Finally, the trial court made substantial findings


       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 9 of 12
       regarding Henry’s dissipation of assets during the marriage and his hiding of

       assets. The trial court noted that Henry had hidden personal injury settlement

       money during the marriage and that he had incurred substantial credit card

       debts throughout the marriage, resulting in multiple bankruptcy filings. The

       findings of fact and conclusions thereon are clear that the trial court found a

       proper basis for deviating from the statutory presumption of an equal division.


[18]   The trial court here satisfactorily explained its unequal division of the marital

       property. Despite any error in the trial court’s valuation of the pensions or

       exclusion of the mortgage debt, we conclude that any such error was harmless

       because the trial court otherwise satisfied the requirements of Indiana Code

       Section 31-15-7-5 and its reasons for awarding a greater share to Vicki fully

       justify the unequal division. See, e.g., Helm, 873 N.E.2d at 90.


                                                 Conclusion
[19]   Any error in the trial court’s consideration of the pensions or the mortgage debt

       was harmless error. The trial court’s unequal division of the marital assets is

       not clearly erroneous. We affirm.


[20]   Affirmed.


[21]   Altice, J., concurs.


       Robb, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 10 of 12
                                           IN THE
    COURT OF APPEALS OF INDIANA

Henry Shell,                                             [Add Hand-down date]
Appellant- Respondent,                                   Court of Appeals Case No.
                                                         52A05-1505-DR-456
        v.

Vicki Shell,
Appellee-Petitioner.




Robb, Judge, dissenting


I respectfully dissent.


With respect to the valuation – or lack thereof – of Vicki’s interest in the

Kentucky property, the majority concludes Henry cannot now argue about the

trial court’s failure to assign a value because neither party presented evidence as

to the value of the property or Vicki’s interest in it. It appears, however, that

Vicki failed to respond to either Henry’s or the trial court’s requests that she

provide specific information as to the value. Even if the only evidence is Vicki’s

“vague testimony” of the property’s value in comparison to the marital


Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 11 of 12
residence, it is clear the property has value, and I cannot agree with the majority

that the trial court did not err in assigning it no value.


With respect to Vicki’s pensions, I agree with the majority that the trial court

erred in failing to consider Henry’s evidence of the actual value of the parties’

pensions, instead simply stating that Vicki’s pensions were “slightly more” than

Henry’s and setting them off to the respective parties. In fact, the evidence

shows Vicki’s pensions are worth more than twice Henry’s. With respect to the

mortgage on the marital residence, the trial court based its decision on Henry’s

credit card spending. However, without context for the credit card debt (for

instance, was it incurred for family purposes or Henry’s alone?), we cannot

assess whether it constitutes dissipation. I agree with the majority that to the

extent the trial court did not include the debt in the marital pot, it erred.


Despite finding errors in the trial court’s valuation of the marital property, the

majority nonetheless determines the errors are harmless and the trial court’s

unequal property division in Vicki’s favor was not clearly erroneous. Because

there were so many errors in valuation, and because all the errors favored Vicki,

I cannot agree that the errors were necessarily harmless. Perhaps they were, but

we are not able to evaluate the harm on a fully informed basis. Therefore, I

also cannot agree that the trial court’s property division is not clearly erroneous,

as it is, itself, based on acknowledged errors. I would remand to the trial court

to fix its errors in valuing the marital property and reconsider its property

division.



Court of Appeals of Indiana | Memorandum Decision 52A05-1505-DR-456 | February 24, 2016   Page 12 of 12
