FOR PUBLICATION
                                                                           Mar 06 2014, 9:11 am




ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

DEBRA LYNCH DUBOVICH                                MELISSA L. ROHRER
REVA J. HILL                                        Merrillville, Indiana
Levy & Dubovich
Merrillville, Indiana                               R. BRIAN WOODWARD
                                                    Woodward & Blaskovich, LLP
                                                    Merrillville, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

In re the Marriage of:                              )
                                                    )
FRANK J. OZUG,                                      )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )      No. 45A03-1307-DR-250
                                                    )
KAREN S. OZUG,                                      )
                                                    )
       Appellee-Petitioner.                         )


                         APPEAL FROM THE LAKE CIRCUIT COURT
                         The Honorable Michael A. Sarafin, Special Judge
                               Cause No. 45C01-1112-DR-1023



                                         March 6, 2014


                               OPINION - FOR PUBLICATION


KIRSCH, Judge
       Frank J. Ozug (“Husband”) appeals the trial court’s decree of dissolution (“the

Decree”), claiming that it was error to award Karen S. Ozug (“Wife”) spousal maintenance

despite a finding that there was no credible evidence of Wife’s medical condition and that

it was error to award Wife more than 50% of the marital estate. Wife cross-appeals, arguing

that Husband’s notice of appeal was not timely filed.

       We vacate and remand.

                           FACTS AND PROCEDURAL HISTORY

       Husband and Wife were married on June 26, 1992. The parties have two children

as a result of their marriage, who were eighteen and nineteen years of age at the time of the

dissolution. Wife filed a petition for dissolution of marriage on December 16, 2011. After

a failed attempt at mediation, the parties agreed to binding arbitration. The arbitration

proceeding was held on March 4, 2013, and the arbitrator filed written findings and

conclusions of law with the trial court on April 12, 2013. The trial court accepted the

findings and entered them as the final Decree.

       About ten years prior to the dissolution, Wife inherited money from her parents, and

the money was placed in various joint accounts in both parties’ names. When the parties

separated, Wife withdrew at least $194,830.28 from those joint accounts. Wife attempted

to secret away this money upon the separation of the parties until the time of the final

arbitration. Because the fund had originated from her inheritance, Wife requested a

deviation from the statutory presumption of an equal distribution of the personal property,

which was denied in the Decree. Appellant’s App. at 22.



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         Wife requested spousal maintenance due to alleged health issues and testified at

arbitration to having a heart condition, asthma, and other health issues for which she was

required to take prescription medications. It was found that there was no credible evidence

presented by Wife to support her allegations of these conditions or that she had been

prescribed medications for the conditions. Id. at 23. However, Husband was ordered to

pay spousal maintenance in the form of continuing health care coverage for Wife for a

period of 365 days from the date of the Decree, which was based on the disparity in the

earning ability of the parties, the duration of the marriage, Wife’s inability to support

herself, and Wife’s inability to obtain health insurance coverage for at least one year. Id.

at 24.

         At the time of the arbitration, the parties owed over $47,000.00 in credit card debt.

Husband was ordered to be solely responsible for this debt. Id. at 19. Pursuant to the

Decree, Husband was awarded:

         his pension with Mittal Steel (a pre-marital asset), his 2006 Chevrolet
         Avalanche vehicle, the Chase Checking Account, the joint Chase Account .
         . ., his Tech Credit Union Savings Account . . ., his Advance Credit Union
         Account, the Advance FCU Account balance, his Waddell & Reed Account,
         his Life Insurance Policy with State Farm and any cash value associated
         therewith, as well as fifty percent (50%) of his Retirement Pensions at
         American Steel and U.S. Steel.

Id. at 21. Wife was awarded:

         the 2001 Grand Marquis vehicle and the 2005 Chevy Trailblazer vehicle, the
         balance of any American Savings Account, the balance of any First Midwest
         Account, the balance of any First Midwest Account [(different account
         number)], any funds on deposit in the Citizen’s Financial Bank accounts
         [(three separate account numbers)], as well as the balance of any funds on
         deposit with the First Financial Bank Account.


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Id. Wife was also awarded 50% of Husband’s pensions at American Steel and U.S. Steel.

The values of these various accounts were not set forth in the Decree.

       Husband filed a motion to correct error on May 1, 2012. Because a hearing on the

motion to correct error was not scheduled within the required period of time, Husband’s

motion to correct error was deemed denied. Husband now appeals.

                             DISCUSSION AND DECISION

       Although Wife’s brief does not characterize it as such, by raising the issue of the

timeliness of Husband’s notice of appeal, she has raised a cross-appeal. Because the issue

of timeliness of the notice of appeal impacts this court’s jurisdiction, we address this issue

first. Wife contends that Husband’s notice of appeal was untimely, and therefore, we are

divested of jurisdiction over this appeal. Wife argues that Husband was not permitted to

file a motion to correct error under the Family Law Arbitration Act and that his only avenue

for relief from the arbitrator’s award was to file a timely notice of appeal after the judgment

was entered by the trial court. Because Husband’s notice of appeal was not filed within

thirty days of entry of the final judgment, Wife contends that it was not timely filed.

       Under the Family Law Arbitration Act, an arbitrator “shall make findings of fact

and conclusions of law.” Ind. Code § 34-57-5-7(a). After the trial court has received a

copy of the findings of fact and conclusions, the trial court shall enter judgment. I.C. § 34-

57-5-7(d). “An appeal may be taken after the entry of judgment under section 7(d) . . . as

may be taken after a judgment in a civil action.” I.C. § 34-57-5-11. In a civil matter, an

appeal must be initiated by the filing of a notice of appeal within thirty days of a final

judgment or, if a motion to correct error is filed, within thirty days of when the motion is

                                              4
ruled upon or deemed denied. Ind. Appellate Rule 9(A)(1); Bohlander v. Bohlander, 875

N.E.2d 299, 300 (Ind. Ct. App. 2007), trans. denied.

       Here, the arbitrator made the requisite findings of fact and conclusions of law, and

the trial court entered judgment after receiving the findings and conclusions. Husband then

timely filed a motion to correct error within thirty days of the final judgment, and the

motion was deemed denied forty-five days after it was filed because no hearing was set or

ruling made on the motion. Ind. Trial Rule 59(C); T.R. 53.3(A). Husband filed his notice

of appeal within thirty days after his motion to correct error was deemed denied. App. R.

9(A)(1).

       Under the Family Law Arbitration Act, an appeal may be taken after the entry of

judgment as may be taken after a judgment in a civil action. I.C. § 34-57-5-11. Under

Indiana Trial Rule 59, a motion to correct error is permitted to be filed in a civil action after

the entry of final judgment, and under Indiana Appellate Rule 9(A)(1), an appeal may be

initiated within thirty days of a motion to correct error being deemed denied. Therefore,

Indiana’s appellate procedure and trial procedure allow for the filing of a motion to correct

error in any civil action and the opportunity to appeal after the determination of the motion

to correct error. In the present case, Husband had the right to file a motion to correct error,

and timely filed his notice of appeal after his motion was deemed denied. We conclude

that his notice of appeal was timely, and we have jurisdiction over this appeal.

       We now turn to Husband’s arguments on appeal. Husband argues that it was error

to award Wife spousal maintenance despite a finding that there was no credible evidence

of Wife’s medical condition. He also claims that it was error to award Wife more than

                                               5
50% of the marital estate because the money derived from Wife’s inheritance that she

withdrew from their joint accounts and attempted to hide after their separation was not

considered as part of the marital estate. He further contends that it was error to award Wife

more than 50% of the marital estate because the parties’ joint credit card debt was not

considered as part of the marital estate.

       We find the findings and conclusions in this case to be facially inconsistent and

insufficient to support the property distribution in the present case. Under the spousal

maintenance section, the findings state that the arbitrator found that “there was no credible

evidence presented by [Wife] in support of her allegations” of her claimed medical

conditions and the medications she had been prescribed for such conditions. Appellant’s

App. at 23. However, contrary to this finding, spousal maintenance was ordered to Wife

in the form of continuing health care coverage for the period of 365 days. We find these

two findings to be facially inconsistent as a court is required to find that “a spouse is

physically or mentally incapacitated to the extent that the ability of the incapacitated spouse

to support herself is materially affected” in order to order spousal maintenance. See Ind.

Code § 31-15-7-2(1).

       Likewise, we find the findings and conclusions regarding the distribution of

property to be facially inconsistent and insufficient to support the distribution of property.

The findings state that Wife requested a deviation from a presumptive equal division of

personal property and that such request was denied without explanation. The findings then

state that, based on the totality of the circumstances, the division of the personal property

outlined in the Decree was just and appropriate. Appellant’s App. at 23. Nevertheless, the

                                              6
findings do not contain any amounts or values associated with the items of personal

property and accounts distributed to the parties or a final percentage allocation of the

property. In a later-filed verified statement of the evidence, the arbitrator included “a

complete breakdown of the marital estate” including the amounts assigned to the accounts

and items of property distributed between the parties. Id. at 135. However, several of the

accounts listed in Wife’s distribution in the Decree are not listed in this clarification and

some of the accounts listed in the clarification are not listed in the distribution contained in

the Decree.1 Id. at 21, 138. The arbitrator’s clarification also indicated that the distribution

of property resulted in 61% to Wife and 39% to Husband, which is inconsistent with the

finding that Wife’s request for a deviation from the presumptive equal division was denied.

        Based on the stated inconsistencies and lack of information, we are unable to

conduct a proper review of the property distribution and the grant of spousal maintenance

in the present case. We, therefore, vacate the trial court’s judgment and remand for

proceedings to remedy these problems and determine the issues of spousal maintenance

and distribution of the marital estate.

        Vacated and remanded.

FRIEDLANDER, J., and BAILEY, J., concur.




        1
           In Wife’s distribution in the Decree, she was awarded three separate Citizen’s Financial Bank
accounts, which are not listed in this “complete breakdown.” Appellant’s App. at 21, 138. Likewise, there
are two First Financial Bank accounts listed on the arbitrator’s breakdown that are not listed in the
distribution in the Decree. Id. at 21, 138.

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