MEMORANDUM DECISION                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Sep 26 2017, 7:06 am

Memorandum Decision shall not be regarded as                               CLERK
precedent or cited before any court except for the                     Indiana Supreme Court
                                                                          Court of Appeals
purpose of establishing the defense of res judicata,                        and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Mark A. Bates                                          Shana D. Levinson
Schererville, Indiana                                  Levinson & Levinson
                                                       Merrillville, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Rebecca Stormer,                                           September 26, 2017

Appellant-Respondent,                                      Court of Appeals Case No.
                                                           45A05-1701-DR-114
        v.                                                 Appeal from the Lake Circuit Court
                                                           The Hon. Thomas W. Webber, Sr.,
David Zander,                                              Judge
Appellee-Petitioner.                                       The Hon. Michael A. Sarafin,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           45C01-1206-DR-485


Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017       Page 1 of 13
                                          Case Summary
[1]   Appellant-Respondent Rebecca Stormer (“Wife”) and Appellee-Petitioner

      David Zander (“Husband”) were married in January of 2009, and Husband

      petitioned for dissolution of the marriage in June of 2012. Before the marriage,

      Husband owned an unencumbered farmhouse and several tractors, other motor

      vehicles, and tools. For her part, Wife owned a condominium and a log house

      encumbered by a mortgage, a property-tax lien, and IRS debt. At some point,

      Wife declared bankruptcy, and, as part of the proceeding, the trustee sold

      Wife’s log house and distributed $8000 of the proceeds to Husband with Wife’s

      consent.


[2]   At a hearing on the division of the marital estate, the trial court heard evidence

      that Wife had contributed very little to the marital estate during the marriage

      and had, in fact, dissipated it by losing large amounts of money gambling. The

      trial court also heard evidence that Wife had disposed of several pieces of

      Husband’s personal property post-separation. Following the hearing, the trial

      court issued its order, in which it awarded Husband 80% of the marital estate.

      Wife contends that the trial court abused its discretion in ordering an unequal

      division of the marital estate and in not ordering that Husband return the $8000

      he received from the sale of the log house in Wife’s bankruptcy proceeding.

      Because we disagree, we affirm.


                            Facts and Procedural History
[3]   Husband and Wife were married on January 23, 2009. Prior to the marriage,

      Husband owned an unencumbered farmhouse worth approximately $330,000,
      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 2 of 13
      which he had owned since 1977. Husband also owned thirty-eight tractors,

      several four-wheelers and quads, and various tools. Prior to the marriage, Wife

      owned a log house valued at $350,000 that was encumbered by a fifty-thousand-

      dollar mortgage, a property-tax lien, and IRS debt. Wife also owned a

      condominium in Park Forest, Illinois. Additionally, Wife had received her

      previous husband’s 401K and pension, some furniture, and some dishes. Wife

      had owned a condominium in Lowell, Indiana, but sold it before the marriage

      for $129,000.


[4]   At the beginning of the marriage, the parties lived in Wife’s log house but

      moved into Husband’s farmhouse in 2010. Wife made no contributions to the

      maintenance of the farmhouse or to the acquisition of any of the personal

      property therein. The $129,000 Wife obtained from the sale of her Lowell

      condominium was never used during the marriage by the couple; Husband

      testified that he suspects that it was “[h]igh time at the [casino] boat” or she

      gave it to her mother. Tr. p. 75. While living in the farmhouse with Husband,

      Wife rented out her log house for $1500 per month but did not apply the rent to

      the log house mortgage loan or pay property taxes with it.


[5]   Husband, aged sixty-seven, received $5000 per month during the marriage in

      veteran’s disability and social security. Wife testified that she earned $500 per

      week from the VFW for managing the poker slot machines plus $5 per hour

      (plus tips) for working the bar and running bingo games. Wife also received

      $750 per month in disability payments and received weekly child support from

      her previous husband. At some point, Husband bought Wife a brand-new hot

      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 3 of 13
      dog stand that she operated for a time as “Becky’s Hot Dogs” in a Lowell park,

      but she did not want to work after “a little while” so the machine sat in

      Husband’s barn. Tr. p. 92.


[6]   At some point during the marriage, Husband received a telephone call from a

      person telling him that an uncle had died in China and left him some money.

      The person informed Husband that he was to inherit $3,000,000.00, but

      apparently required $49,000.00 to release it to Husband. Husband and Wife

      discussed the situation and visited Husband’s banker together before Husband

      flew to China to complete the transaction. As it happened, the transaction was

      fraudulent and Husband ended up losing approximately $13,000.00.


[7]   Husband and Wife both gambled during the marriage. Wife showed losses at

      AmeriStar Casino from 2010-2012 of approximately $48,000. Husband testified

      that his gambling losses approximately equaled his winnings. The only

      financial contributions made by Wife during the marriage were some gutters for

      her log house and some tickets to Great America Amusement Park. In January

      of 2012, Husband discovered that Wife had made several undisclosed

      withdrawals from his account and, without his permission, forged his name to

      checks. At some point, Wife filed for bankruptcy due to her pre-marital debt,

      and the bankruptcy trustee sold her log home to satisfy her creditors. Upon

      advice of counsel, Wife agreed that both she and Husband should receive $8000

      from that initial distribution, leaving proceeds in the amount of $68,604.58,

      ultimately distributed to Wife.



      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 4 of 13
[8]   Husband petitioned to dissolve the marriage on June 20, 2012. Afterwards,

      Wife had temporary and exclusive possession of the farmhouse. During the

      summer of 2013, in anticipation of moving out, Wife sold several items out of

      the house. Wife convinced a male friend to come to the house and help her

      clear it out, telling him that everything in the house belonged to her and her

      son. According to the friend’s testimony, he and Wife removed several of

      Husband’s tractors, tools, come-a-longs, drills, and wrenches worth thousands

      of dollars and a transom worth $3500. Wife and the friend dismantled a

      camper that was on the property, stripped the wires, and sold it for scrap.

      Wife’s son took some of Husband’s farm equipment, namely, a Farmall 561

      and three John Deere tractors and three or four of Husband’s four-wheelers and

      quads.


[9]   The trial court dissolved the marriage on September 21, 2015. The distribution

      of the marital estate was delayed because of Wife’s pending bankruptcy

      petition. The trial court held the distribution hearing on October 17, 2016, and

      heard evidence concerning the parties’ marriage. On December 16, 2016, the

      trial court issued its order dividing the marital estate, which provides, in part, as

      follows:


                     14. With regard to the marital estate, the Court finds and
              Orders that the estate consists of the property in Lowell known as
              the “farm house”, the condominium in Illinois, the contents of
              the barn which include collections of various tractors, trailers,
              and weapons as well as the vast majority of the personal
              property, the proceeds from the log house and additional
              personal property that the Wife left at the farm house. The Court

      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 5 of 13
        has considered all of the statutory factors in I.C. §31-15-7-5 and
        has determined that a deviation is necessary in this case.
                15. In addition, the Court has considered the fact that this
        was only a three (3) year marriage, that the disputes should have
        never risen to the level that it did and the fact that the parties
        have both been through divorces in the past and should have
        known better. In this case, it is easier to determine the status of
        the parties prior to the marriage and the Court is able to know
        what each party had because the parties’ assets stem from prior
        dissolutions.
                16. There is no doubt that Mr. Zander had all of his
        personal property prior to the marriage as he was awarded those
        assets in his first divorce.
                17. The Court is considering dissipation both pre and post
        filing by the Wife and disposition of the property by the
        Husband.
                18. There appears to have been dissipation both Pre and
        Post Decree by the Wife and disposition of property by the
        Husband.
                19. The credible values of the property are as follows:
                       a. Farm House        $335,000.00
                       b. Log House         $68,604.58
                       c. Condominium $15,000.00
                20. There is no credible evidence before the Court of the
        value of the property in the barn or the other personal property.
        As indicated, the Court believes that a deviation from the
        presumptive 50/50 is just and reasonable in this case and finds
        that Husband should receive the Farm House and all of the
        contents in the barn in its entirety.
                21. The Wife is awarded the proceeds from the Log House
        sale as well as the Condominium in Illinois.
                22. The Court acknowledges that this is a substantial
        deviation from the presumptive 50/50 division of assets but the
        Court believes it is justified not only on the statutory factors but
        also the short duration of this marriage.
                23. Wife is awarded the items that are in the breeze way or
        porch at the Farm House as well as the storage unit located at the

Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 6 of 13
               Farm House. Each party is awarded any vehicles that existed at
               the time of the marriage that are currently in their care and
               custody.
                      24. Other than as indicated above, Husband is awarded all
               of the contents at the Farm House.
                      25. Each party shall pay any debts in their individual
               names and any debts incurred after the date of the filing of this
               action.

       Order pp. 4–6. Wife contends that the trial court abused its discretion in

       ordering an unequal division of the marital estate and in failing to order

       Husband to return the $8000 he received from the proceeds of the sale of the log

       house in Wife’s bankruptcy proceeding.


                                  Discussion and Decision
                      I. Whether the Trial Court Abused its
                     Discretion in Dividing the Marital Estate
[10]   Wife contends that the trial court abused its discretion in awarding

       approximately 80% of the marital estate to Husband. Indiana Code section 31-

       15-7-5 provides as follows:

               The court shall presume that an equal division of the marital
               property between the parties is just and reasonable. However,
               this presumption may be rebutted by a party who presents
               relevant evidence, including evidence concerning the following
               factors, that an equal division would not be just and reasonable:
                   (1) The contribution of each spouse to the acquisition of the
                   property, regardless of whether the contribution was income
                   producing.
                   (2) The extent to which the property was acquired by each
                   spouse:
                       (A) before the marriage; or
       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 7 of 13
                       (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.
                   (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.

[11]   “Subject to the statutory presumption that an equal distribution of marital

       property is just and reasonable, the disposition of marital assets is committed to

       the sound discretion of the trial court.” Augspurger v. Hudson, 802 N.E.2d 503,

       512 (Ind. Ct. App. 2004).

               An abuse of discretion occurs if the trial court’s decision is clearly
               against the logic and effect of the facts and circumstances, or the
               reasonable, probable, and actual deductions to be drawn
               therefrom. An abuse of discretion also occurs when the trial
               court misinterprets the law or disregards evidence of factors listed
               in the controlling statute. The presumption that a dissolution
               court correctly followed the law and made all the proper
               considerations in crafting its property distribution is one of the
               strongest presumptions applicable to our consideration on
               appeal. Thus, we will reverse a property distribution only if there
               is no rational basis for the award and, although the circumstances
               may have justified a different property distribution, we may not
               substitute our judgment for that of the dissolution court.

       Id. (citations, quotation marks, and brackets omitted). “When ordering an

       unequal division, the trial court must consider all of the factors set forth in the

       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 8 of 13
       statute.” Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014) (citing Eye v.

       Eye, 849 N.E.2d 698, 701 (Ind. Ct. App. 2006)). “While a trial court abuses its

       discretion in considering a factor in isolation from the other four factors, the

       court is not required to explicitly address each factor.” Id. (citing Eye, 849

       N.E.2d at 702). “However, a court on review must be able to infer from the

       trial court’s findings that all the statutory factors were considered.” Id. (citing

       Eye, 849 N.E.2d at 703).

[12]   Wife concedes that the trial court’s identification and valuation of the marital

       assets was appropriate, namely the farm house ($335,000), the proceeds from

       the sale of the log house ($68,604.58), the Illinois condominium ($15,000), the

       contents of the barn at the farm house, and personal property Wife left at the

       farmhouse. Wife, however, contends that the trial court abused its discretion in

       essentially awarding her and Husband the property they individually owned

       before getting married. Wife argues that Husband did not overcome the

       presumption of an equal division of the marital estate in light of the parties’

       comingling of assets, dissipation and disposition of property during the

       marriage, and alleged contributions to marital finances.


                       A. Comingling of Assets During Marriage
[13]   Wife contends that the parties significantly comingled their assets, pointing to

       evidence that they put each other’s names on titles to real estate, moved into

       Wife’s log house at the beginning of their marriage, and that mortgage

       payments were made out of a joint checking account. We do not believe that

       these facts necessarily support an equal division of the marital estate in this

       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 9 of 13
       case. While it is true that the parties put each other’s names on real properties

       they individually owned before marriage, it is not clear that this indicated any

       significant comingling. For example, while Husband’s name was on the title of

       the log house, there is no evidence that Husband or the marital estate benefitted

       from Wife renting it out after moving into the farmhouse with Husband. Also,

       there does not seem to be much that can be made of the fact that the parties

       initially lived in the log house when they ultimately moved into the farmhouse

       and lived there for the majority of the marriage. Finally, the mere existence of a

       joint checking account does not necessarily mean that Wife made any

       significant contribution to it. Wife has not established that comingling of assets

       favors an equal division of the marital estate.


                                B. Dissipation and Disposition
[14]   Wife also contends that evidence of dissipation and dispositions of marital

       assets by both parties supports an equal division of the marital estate. The

       evidence in favor of the trial court’s judgment, notably evidence of post-

       separation dissipation of personal property by Wife, supports a division

       favoring Husband. There is evidence to support the trial court’s finding that

       there were “unusual dispositions also by to a certain extent husband[,]”

       specifically the inheritance scam that cost the parties approximately $13,000.

       Tr. p. 191. There is, however, evidence that Wife dissipated significantly more

       than Husband, pre- and post-separation. Evidence was admitted that prior to

       separation Wife lost approximately $48,000 gambling over a three-year period

       and made unauthorized withdrawals from Husband’s account by forging his

       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 10 of 13
       name. The trial court also heard evidence that post-separation, Wife disposed

       of significant amounts of Husband’s personal property from the Farmhouse,

       including tractors, tools, come-a-longs, drills, wrenches worth thousands of

       dollars, a transom worth $3500, a camper sold for scrap, a Farmall 561, three

       John Deere tractors, and three or four of Husband’s four-wheelers and quads.

       The trial court noted that this was “clearly dissipation under the divorce

       statute” and noted that it had made it clear in previous orders that property was

       to be preserved. Tr. p. 192. In summary, the evidence touching on dissipation

       and disposition of marital assets favors an unequal division of the marital estate

       in Husband’s favor.


                                C. Contributions of Each Party
[15]   Wife argues that the respective contributions by the parties to the marriage

       support an equal division of the marital estate. Husband, however, testified

       that Wife made no contributions to the maintenance of the farmhouse or to the

       acquisition of any of the personal property therein and that the only financial

       contribution made by Wife during the marriage was some gutters for her log

       house and some tickets to Great America Amusement Park. Although Wife

       points to some evidence to indicate that she did contribute to the marriage, the

       trial court was under no obligation to credit it. The evidence most favorable to

       the trial court’s judgment supports an unequal division of the marital estate

       based on the parties’ respective contributions. In the end, Wife’s arguments

       regarding the trial court’s unequal division of the marital estate are nothing

       more than invitations to reweigh the evidence, which we will not do.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 11 of 13
                          II. The $8000 Awarded to Husband
[16]   Wife contends that even if the trial court did not abuse its discretion in

       unequally dividing the marital estate, it improperly allowed Husband to keep

       $8000 from the proceeds of the sale of the log house, which occurred during

       Wife’s bankruptcy proceeding. Our review of the record does not reveal that

       Wife ever requested that the trial court order the return of the $8000 in

       question, so Wife is making this argument for the first time on appeal.


               It has long been the general rule in Indiana that an argument or
               issue presented for the first time on appeal is waived for purposes
               of appellate review. See, e.g., Plank v. Cmty. Hospitals of Ind., Inc.,
               981 N.E.2d 49, 53 (Ind. 2013) (“[A]ppellate review presupposes
               that a litigant’s arguments have been raised and considered in the
               trial court.”); Ind. Dep’t of Envtl. Mgmt. v. Raybestos Prods. Co., 897
               N.E.2d 469, 474 (Ind. 2008) (“Generally, an appellate court will
               not review an issue that was not presented to the trial court.”),
               corrected on reh’g, 903 N.E.2d 471 (Ind. 2009); Troxel v. Troxel, 737
               N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an issue for
               the first time in a motion to correct error or on appeal.”); Franklin
               Bank & Trust Co. v. Mithoefer, 563 N.E.2d 551, 553 (Ind. 1990)
               (“A party cannot change its theory and on appeal argue an issue
               which was not properly presented to the trial court.”);
               Indianapolis Newspapers, Inc. v. Fields, 254 Ind. 219, 260, 259
               N.E.2d 651, 670 (1970) (“We do not review issues presented for
               the first time on appeal except to avoid grave injustice.”).
       Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015).

       Because Wife makes this specific argument for the first time on appeal, she has

       waived it for appellate review.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 12 of 13
[17]   We conclude that Wife has failed to establish that the trial court abused its

       discretion in ordering an unequal division of the marital estate or in not

       ordering that Husband return the $8000 he received from the sale of Wife’s log

       house. Consequently, we affirm the trial court’s order disposing of the marital

       estate.


[18]   The judgment of the trial court is affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-DR-114 | September 26, 2017   Page 13 of 13
