Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before                           Mar 23 2012, 8:36 am
any court except for the purpose of
establishing the defense of res judicata,                              CLERK
                                                                     of the supreme court,
collateral estoppel, or the law of the case.                         court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

L. ROSS ROWLAND                                     RALPH E. DOWLING
Rowland & Doyle                                     The Dowling Law Office
Muncie, Indiana                                     Muncie, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM H. LANE,                                    )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )      No. 18A02-1107-DR-668
                                                    )
CONNIE S. LANE,                                     )
                                                    )
       Appellee-Petitioner.                         )


                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                             The Marianne L. Vorhees, Judge
                              Cause No. 18C01-1005-DR-76




                                          March 23, 2012



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                     Case Summary and Issue

          Following dissolution of the second marriage of William H. Lane (“Husband”) and

Connie S. Lane (“Wife”), Husband appeals the trial court’s division of property. He raises

the sole issue of whether the trial court erred in including in the marital estate assets he

owned prior to the parties’ second marriage. Concluding the trial court did not err, we

affirm.

                                   Facts and Procedural History

          Husband and Wife first married in 1996. A court dissolved this marriage and in 2002

the parties signed a mediation agreement, which the trial court approved in 2004. Husband

and Wife married again in December 2006 and separated in May 2010. Wife filed for

dissolution and the trial court dissolved the second marriage in March 2011. Following a

hearing, the trial court issued an order regarding division of property in June 2011, which is

the subject of this appeal.

          Relevant to this appeal, the trial court entered the following findings of fact and

conclusions of law:

          2. . . . [Wife] is 39 years old and a teacher . . . . [Husband] is 70 years old and
          retired.
          ***
          4. . . . The parties did not execute a pre-nuptial or antenuptial agreement to
          protect any assets in the event the second marriage ended in divorce. The
          second marriage is about 3 ½ years. The two marriages totaled about 11 years.
          ***
          6. The parties agreed on many issues . . . .
          ***
          9. Each party has his or her own defined benefit pension and/or annuity. They
          agreed that each should keep their own defined benefit payments and that they
          were equal in value. [Wife] shall take as her sole and separate property the


                                                  2
defined benefit pension acquired through the Indiana State Teachers
Retirement Fund. (The cash portion of the benefit is included in the marital
estate, as the Court will show later.) [Husband] shall take as his sole and
separate property the monthly pension benefit he receives from the Chrysler
Trust, and the monthly annuity payment he receives from U.S. Engineering.
***
        I.     The Marital Estate as of May, 2010 (the Filing Date).
12. The parties own the following assets with the values as stipulated by them:
[Maddox Drive Property]                                           $75,000.00
Less Line of Credit Debt:                                         $30,653.00
***
[2nd Avenue Property in Florida]                                  $70,000.00
[1st Court Property in Florida]                                  $117,700.00
Less Mortgage Debt:                                               $29,000.00
***
USB Portfolio IRA                                                 $98,202.00
***

13. In addition to the debts associated with the assets listed above, the parties
have other debts as follows . . . .
***
16. [Wife] asked the Court to divide the marital estate equally. . . .
17. [Husband] disagreed with the 50-50 analysis and asked the Court to award
him more than 50% of the marital estate. He argued the first divorce
agreement precluded [Wife] from taking a distribution from some of the same
property. [Wife] would, in effect, he argued, be paid twice for the same assets.
 He also asked the Court to consider that he helped [Wife] by helping to pay on
her student loans during the marriage.
***
                     III. Division of the Marital Estate
19. [Husband]’s proposal . . . is that the Court award him $375,950.00 in net
assets and that [Wife] take $45,172.00 in net assets. [Husband] does not
include the values of the IRA and the two Florida properties in his calculation .
. ., which Indiana law requires the Court to consider. He also leaves out
[Wife]’s student loan, which the Court must consider as well. [Husband]’s
proposed division is therefore 91% of the marital estate to [Husband] and 9%
to [Wife]. On its face, this proposal is very unfair to [Wife] and is not the just
and equitable division that the Indiana Code requires.
20. [Wife] should take as her sole and separate property the following assets:
***
2nd Avenue, FL                                                      $70,000.00
***


                                        3
22. [Husband] should take as his sole and separate property the following
assets:
Maddox Drive                                                     $75,000.00
***
1st Court, FL                                                   $117,700.00
***
USB IRA                                                          $98,202.00
***
23. [Husband] should pay and hold [Wife] harmless as to the following debts:
Maddox line of credit                                            $30,653.00
  st
1 Court mortgage                                                 $29,000.00
***
24. To summarize, [Wife] is taking assets totaling $172,005.00, with debts
totaling $65,113.00, for a net marital estate of $106,892.00. [Husband] is
taking assets totaling $374,544.00 and debts totaling $68,594.00, for a
$305,950.00 net marital estate.
25. The net marital estate between the two parties totals $412,842.00. The
law presumes that each party should take one-half. The Court finds [Husband]
has presented sufficient evidence to rebut the 50-50 presumption. The second
marriage was relatively short (about 3 ½ years), the parties had no children
together, and to her credit and great benefit, [Wife] has a stable career by
which to support herself. [Husband] did not add any marital assets to the IRA
during either marriage. He owned the Maddox Drive property before the
parties’ first marriage. During the second marriage, [Husband] has gained a
great benefit because they have increased the equity in the Florida properties
substantially, and he added a new property (Pierce Street), which has no debt
on it.
26. . . . [Husband] brought the IRA into the marriage. No marital assets were
ever contributed to it. [Husband] showed his intent throughout the first and
second marriages to maintain this asset as his sole and separate property.
Taking this asset out of consideration and dividing all other assets 50-50,
leaves approximately 33% or slightly more of the marital estate to [Wife].
Even without considering any mathematical way of dividing the marital estate,
a 65%/35% split appears fair and reasonable . . . . [Husband] brought
significant assets into the marriage and has previously paid $7,000 in cash to
[Wife] for her share of some of those assets. [Husband] is retired and cannot
replace any of these assets. So 35%/65% seems to be a fair division of the
marital estate.
27. The Court finds that [Wife] should take 35% of the marital estate, or
$144,495.00. She has $106,892.00 in net assets, and so [Husband] shall pay to
[Wife] the sum of $37,603.00 to bring her percentage to 35%. . . .
***


                                      4
Respondent-Appellant’s Appendix at 21-28.1

        Husband now appeals.

                                       Discussion and Decision2

                                         I. Standard of Review

        The trial court entered findings of fact and conclusions of law pursuant to Indiana

Trial Rule 52(A). Our standard of reviewing such findings and conclusions is well-settled:

        We must first determine whether the evidence supports the findings and
        second, whether the findings support the judgment. We will disturb the
        judgment only where there is no evidence supporting the findings or the
        findings do not support the judgment. We do not reweigh the evidence and
        consider only the evidence favorable to the trial court’s judgment. Appellants
        must establish that the trial court’s findings are clearly erroneous, which occurs
        only when a review of the record leaves us firmly convinced a mistake has
        been made. However, although we defer substantially to findings of fact, we
        do not defer to conclusions of law. Additionally, a judgment is clearly
        erroneous if it relies on an incorrect legal standard. . . . The purpose of Rule
        52(A) findings and conclusions is to provide the parties and reviewing courts
        with the theory upon which the case was decided.

Maxwell v. Maxwell, 850 N.E.2d 969, 972 (Ind. Ct. App. 2006) (quotations and citations

omitted), trans. denied.




        1
          The trial court also considered rental income received during the pendency of the division of
property, and concluded that Husband owes Wife $900.
        2
          We note that in Wife’s Statement of the Issue and Statement of the Case, she criticized Husband’s
appellate brief in argumentative paragraphs before she stated her own version of the issue (with two footnotes)
for our review and statement of the case. In addition, Wife criticized Husband’s Statement of the Facts and
discussed appellate rules for nearly half of her own Statement of the Facts, which she contended describes the
relevant facts. We advise counsel to reserve argument for the Argument section of the appellate brief and

                                                      5
                                   II. Division of Property

                                          A. Waiver

       Wife first argues Husband has waived the issue he now raises by not explicitly

challenging any of the trial court’s findings or conclusions or contending the trial court relied

on an incorrect legal standard. We deem the argument articulated in Husband’s appellate

brief sufficient to avoid waiving an appellate argument that the trial court either erred in

finding that the Maddox Drive property, two Florida properties, and USB individual

retirement account were part of the marital estate to be divided, or applied the wrong legal

standard in entering a judgment on this finding. See Hass v. State of Indiana – Dep’t of

Transp., 843 N.E.2d 994, 997 (Ind. Ct. App. 2006) (explaining our preference to address

issues on their merits if possible), trans. denied; see also Roberts v. Cmty. Hosps. of Indiana,

Inc., 897 N.E.2d 458, 469 (Ind. 2008) (stating a preference for resolving cases on the merits

“if in doubt” and declining to find waiver, regarding an issue on which there was no Indiana

precedent but at least some federal authority).

                                       B. Marital Estate

       The trial court found that Husband rebutted the presumption of a 50-50 division of the

marital estate and allocated assets and debts with the intention of awarding 65% to Husband

and 35% to Wife. See Respondent-Appellant’s App. at 28; see also Scott v. Scott, 668

N.E.2d 691, 705 (Ind. Ct. App. 1996) (discussing the statutory presumption of equal division

and rebuttal of the same). As noted, Husband argues on appeal that the trial court erred in

considering the following as part of the marital estate to be divided: the Maddox Drive


summary thereof.
                                               6
property, two Florida properties, and the USB retirement account. In other words, he argues

those assets should have been awarded to him at the outset and not included in the marital

estate or considered part of his 65% share of the same. In addition to essentially arguing for

a larger share of the parties’ assets, Husband seeks ownership of the Florida property on 2nd

Avenue, which the trial court awarded to Wife.

       Indiana Code section 31-15-7-4 provides that the marital estate includes “the property

of the parties, whether: (1) owned by either spouse before the marriage; (2) acquired by either

spouse in his or her own right: (A) after the marriage; and (B) before final separation of the

parties; or (3) acquired by their joint efforts.” Ind. Code § 31-15-7-4(a). “While the trial

court may ultimately determine that a particular asset should be awarded solely to one

spouse, it must first include the asset in its consideration of the marital estate to be divided.”

Hill v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App. 2007).

       Pursuant to this section, the assets which Husband mentions clearly must be included

in the marital estate, and Husband fails to set forth a cogent argument or legal authorities in

support of his claim that the trial court should have “set [them] aside to him” – and not

included them in the marital estate. Respondent-Appellant’s Amended Brief at 9. This

failure is in violation of Appellate Rule 46(A)(8)(a), regarding an appellant’s brief: “The

argument must contain the contentions of the appellant on the issues presented, supported by

cogent reasoning. Each contention must be supported by citations to the authorities, statutes,

and the Appendix or parts of the Record on Appeal relied on . . . .” (Emphasis added).

       We demand cogent argument supported with adequate citation to authority
       because it promotes impartiality in the appellate tribunal. A court which must


                                                7
         search the record and make up its own arguments because a party has not
         adequately presented them runs the risk of becoming an advocate rather than
         an adjudicator. A brief should not only present the issues to be decided on
         appeal, but it should be of material assistance to the court in deciding those
         issues. On review, we will not search the record to find a basis for a party’s
         argument, . . . nor will we search the authorities cited by a party in order to find
         legal support for its position.

Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997) (citations and footnote omitted).

         Husband does refer us to Indiana Code section 31-15-7-5(2)(A) and (5), but this is not

persuasive because these sub-paragraphs are specific reasons for which the trial court may

decide to deviate from the presumption of equal division of property after the trial court

determines what property must be included in the marital estate. See Thompson v.

Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004) (“The trial court must first determine

what property must be included in the marital estate.”) (quoted in Respondent-Appellant’s

Amended Br. at 8-9), trans. denied. Thus, the trial court did not err by including all assets in

the marital estate.

         Nevertheless, we now consider whether the trial court erred in awarding to Husband

“only” 65% of the marital estate or in not awarding to him the Florida property on 2nd

Avenue. If this property were awarded to him and no other assets or debts were reallocated,

he would receive 82% and Wife would receive 18%, which includes the $37,603 the trial

court ordered Husband pay to Wife.3 An 82-18 split is significantly different from the 65-35

split which the trial court intended and awarded, and we defer to the trial court’s findings as


         3
           To explain our calculations, we note the following. The parties agreed to the value of each specific asset and
debt, and the net total is $412,842. The trial court awarded to Husband assets and debts with a net total of $305,950, and
to Wife a net total of $106,892. This would have been a 74-26 split in favor of Husband. To effectuate its intention of a
65-35 split, the trial court ordered Husband to pay Wife $37,603, or 9% of $412,842, which results in a 65-35 split in
favor of Husband. If, as Husband seeks, the trial court also awarded to him the 2nd Avenue Florida property, worth

                                                            8
to a fair and equitable division of property. See Maxwell, 850 N.E.2d at 974 (explaining our

deference to trial courts regarding division of property). To the extent Husband argues the

trial court should have awarded to him the Florida property on 2nd Avenue in place of some

other assets, and concedes that the 65-35 split is not reversible error, we again defer to the

trial court’s division and note that the allocation of specific assets is within the discretion of

the trial court. See Dean v. Dean, 439 N.E.2d 1378, 1383 (Ind. Ct. App. 1982) (“The mere

fact that a different disposition of the property might have been effected under the same facts

and circumstances will not permit us to substitute our judgment for that of the trial court.”)

                                                   Conclusion

         Husband’s appellate brief is sufficient to avoid waiver of the sole issue he raises on

appeal. Nevertheless, where he does provide cogent argument it does not persuade us that

the trial court committed reversible error in awarding him 65% of the parties’ net assets.

Therefore, we affirm.

         Affirmed.

NAJAM, J., and VAIDIK, J., concur.




$70,000, this would result in an 82-18 split in favor of Husband.

                                                          9
