                                                                                 Mar 11 2016, 8:18 am




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Rebecca R. Vent                                          Alan D. Wilson
      McIntyre Hilligoss Vent O’Keefe &                        Kokomo, Indiana
      Welke
      Kokomo, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Beth A. Ahls,                                            March 11, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               34A02-1509-DR-1416
              v.                                               Appeal from the Howard Superior
                                                               Court
      Carleton E. Ahls,                                        The Honorable George A.
      Appellee-Respondent                                      Hopkins, Judge
                                                               Trial Court Cause No.
                                                               34D04-1307-DR-588



      Crone, Judge.


                                            Case Summary
[1]   Beth A. Ahls (“Wife”) appeals a property distribution order issued in

      conjunction with the dissolution of her marriage to Carleton E. Ahls

      (“Husband”). She asserts that the trial court clearly erred in dividing Husband’s

      three retirement accounts; refusing her request for survivor benefits associated

      Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016                          Page 1 of 11
      with those accounts; and in refusing to order Husband to pay a portion of her

      attorney’s fees. Finding that the trial court clearly erred in applying the

      coverture fraction formula to the division of Husband’s retirement accounts, we

      reverse and remand. In all other respects, we affirm.


                                Facts and Procedural History                                1




[2]   Husband and Wife married in 1993 and had one child of the marriage

      (“Daughter”). In 2013, Wife filed a petition for marital dissolution. At the

      time of the dissolution hearing, the child was leaving for college and was

      deemed emancipated. The marital assets included Husband’s three vested

      retirement accounts: a Thrift Savings Plan (“Thrift”), a Civil Service Pension,

      and a Military Pension. The parties’ experts presented conflicting valuations of

      the accounts as of the time of the hearing, and the trial court adopted the

      valuations presented by Husband’s expert: $311,208.01 for the Thrift, $289,817

      for the Civil Service Pension, and $265,578 for the Military Pension. The

      parties agreed that for both the Thrift and Civil Service Pension accounts, 62%

      was earned during the marriage, and for the Military Pension, 36% was earned

      during the marriage. The remainder of each account, earned by Husband

      before the marriage, was set aside as Husband’s personal property.




      1
         We note that Wife’s appellant’s appendix does not comply with the Indiana Rules of Appellate Procedure
      in the following respects: (1) it does not include a table of contents as required by Appellate Rule 50(C); (2) it
      is not properly paginated as required by Appellate Rule 51(C); and (3) it contains exhibits, which are
      considered part of the transcript and therefore are not to be reproduced in the appendix pursuant to Appellate
      Rules 29 and 50(F).

      Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016                             Page 2 of 11
[3]   As part of the property division order, the trial court sua sponte issued findings

      of fact and conclusions thereon. In its findings, the trial court adopted a 50/50

      division of the marital property, ordered each party to pay his/her own

      attorney’s fees, and adopted the valuations and proposed distribution

      percentages contained in Husband’s exhibits. Using those figures, the trial

      court awarded Wife 15.5% of the value of the Thrift, 15.5% of the value of the

      Civil Service Pension, and 9% of the value of the Military Pension. The court

      ordered Husband to pay an equalization judgment of $52,168.45. The final

      order was silent regarding survivor benefits under any of Husband’s retirement

      accounts.


[4]   Wife now appeals, challenging the trial court’s calculations of her share of

      Husband’s retirement accounts, as well as its decision not to award her survivor

      benefits or attorney’s fees. Additional facts will be provided as necessary.


                                   Discussion and Decision
[5]   Where, as here, the trial court enters findings and conclusions sua sponte, the

      findings control only with respect to the issues they cover, while a general

      judgment standard applies to issues on which there are no findings. In re

      Marriage of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014). We affirm a

      general judgment entered with findings if it can be sustained on any legal theory

      supported by the evidence. Hurt v. Hurt, 920 N.E.2d 688, 691 (Ind. Ct. App.

      2010). When the court has made findings of fact and conclusions thereon, we

      review those findings and conclusions using a clearly erroneous standard.


      Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016   Page 3 of 11
      Sutton, 16 N.E.3d at 485. A finding of fact is clearly erroneous when the record

      contains no facts to support the findings, either directly or by inference. Hurt,

      920 N.E.2d at 691. “A judgment is clearly erroneous if it applies the wrong

      legal standard to properly found facts.” Id. In conducting our review, we first

      determine whether the evidence supports the findings; then we determine

      whether the findings support the judgment. Id. Here, the trial court entered

      findings on the issues of apportionment of Husband’s retirement accounts and

      attorney’s fees but did not enter a finding on survival benefits.


            Section 1 – The trial court clearly erred in applying the
             coverture fraction formula when dividing Husband’s
                              retirement accounts.
[6]   Wife contends that the trial court miscalculated her portion of Husband’s three

      retirement accounts. In dissolution actions, we follow the “one pot” theory,

      meaning that all marital property is included in the marital pot for division,

      regardless of whether it was owned by one spouse before marriage, acquired by

      one spouse after the marriage and before final separation, or acquired through

      the joint efforts of both. Ind. Code § 31-15-7-4(a); Falatovics v. Falatovics, 15

      N.E.3d 108, 110 (Ind. Ct. App. 2014). Including all marital assets in the

      marital pot ensures that the trial court will first determine the value of each

      asset before endeavoring to divide the property. Id. “While the trial court may

      decide to award a particular asset solely to one spouse as part of its just and

      reasonable property division, it must first include the asset in its consideration

      of the marital estate to be divided.” Id.


      Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016    Page 4 of 11
[7]   Wife contends that the trial court clearly erred in applying the coverture fraction

      formula to Husband’s accounts.

              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 is the total period of time during which pension
              rights accrued.


      In re Marriage of Fisher, 24 N.E.3d 429, 433 (Ind. Ct. App. 2014) (quoting Hardin

      v. Hardin, 964 N.E.2d 247, 250 (Ind. Ct. App. 2012) (citation omitted)

      (emphasis omitted)). We apply the coverture fraction formula to determine

      what portion of a retirement asset is subject to division. Barton v. Barton, No.

      32A04-1412-DR-550, 2015 WL 7983011, at *7 (Ind. Ct. App. Dec. 7, 2015),

      trans. denied.


[8]   Here, the trial court stated in its findings that it was dividing Husband’s three

      retirement accounts pursuant to the figures contained in “Respondent’s Exhibits

      P, W, X, Y, and Z.” Appellant’s App. at 8. We note that the trial court could

      have facilitated our review and alleviated confusion had it included in its

      findings the actual figures taken from the exhibits instead of incorporating the

      exhibits wholesale. Exhibit P lists the value of Husband’s Military Pension as

      $265,578; Exhibit W lists the value of his Civil Service Pension as $289,817;

      Exhibit X lists the value of the Thrift as $311,208.01 and calculates the

      percentage due to Wife from both the Civil Service Pension and the Thrift as

      Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016    Page 5 of 11
       31%; Exhibit Y calculates the percentage due to Wife from Husband’s Military

       Pension as 18%; and Exhibits Y and Z calculate the monthly payments to Wife

       under each of the three accounts.


[9]    Wife does not dispute the value attached to each plan as listed in Exhibits P and

       W. Nor does she dispute that the percentages listed in Exhibits X and Y are the

       final and accurate percentages to which she was entitled after equal division.

       However, she correctly maintains that the trial court incorrectly applied the

       coverture fraction formula. We agree.


[10]   First, with respect to the Thrift and the Civil Service Pension, Husband had

       been enrolled in both plans for ten years before the couple’s almost twenty-year

       marriage. Broken down into months, the marital time divided by the total

       accrual time came to 62%. Using the coverture fraction, this means that 62% of

       each of the two accounts was subject to division (here, equal). As such, Wife

       was entitled to 31%. But the trial court incorrectly divided the 31% in half

       again to determine Wife’s ultimate portion, which meant that although she was

       married to Husband for nearly two-thirds of the duration of each account, she

       ultimately was awarded only 15.5%, or one-fourth of the two-thirds. The same

       error occurred with respect to the Military Pension, of which the coverture

       fraction correctly would have amounted to 36%, which, when divided evenly,

       meant 18% for Wife. But the trial court incorrectly divided this in half,

       meaning that Wife was awarded only 9% of the total Military Pension instead

       of the 18% to which she was entitled.



       Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016   Page 6 of 11
[11]   Put another way, the calculations should have looked like this:


                                 Total Value                        Marital Portion


               Thrift:           $311,208.01 × 62/100 = $192,948.96
               Civil:            $289,817.00 × 62/100 = $179,686.54
               Military:         $265,578.00 × 36/100 = $ 95,608.08

               Total Subject to Equal Division:                    $468,243.58
               Wife’s Rightful Portion:                            $234,121.79

               What Wife was Actually Awarded:                     $116,561.91


[12]   Simply put, instead of awarding Wife one-half of the marital portion of each of

       Husband’s three retirement accounts, the court ultimately awarded her only

       about one-fourth of the marital portion of the accounts. 2 This amounts to clear

       error, and therefore we reverse and remand for a proper division using the

       coverture fraction formula. To the extent that this may affect the equalization

       of the marital estate, we order the trial court to revisit that figure as well.


           Section 2 – Wife has waived her claim concerning survivor
            benefits associated with Husband’s retirement accounts.
[13]   Wife challenges the trial court’s refusal to award her survivor benefits in

       conjunction with Husband’s retirement accounts. Her argument consists of




       2
         To add to the confusion, Husband argues that the marital portion may be determined by adding the
       percentages and dividing by three. See Appellee’s Br. at 7 (advocating the following equation: “31% + 31% +
       18% ÷ 3 = 26.9%”). Two problems are evident in this approach: (1) the value of the accounts is not the
       same, so to add and divide percentages does not work mathematically; and (2) the approach does not follow
       the caselaw for application of the coverture fraction formula.

       Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016                       Page 7 of 11
       assertions that Husband is depressed, suicidal, and cannot hold a fulltime job.

       She has failed to include any citation to relevant authority and therefore has

       waived review of this issue pursuant to Indiana Appellate Rule 46(A)(8)(a). See

       Hartley v. Hartley, 862 N.E.2d 274, 284 (Ind. Ct. App. 2007) (finding waiver of

       any issue for which appellant fails to develop cognizable argument with

       adequate citation to authority).


             Section 3 – The trial court acted within its discretion in
              refusing to order Husband to pay a portion of Wife’s
                                  attorney’s fees.
[14]   Wife also maintains that the trial court erred in refusing to order Husband to

       pay a portion of her attorney’s fees. We review a trial court’s decision to award

       or deny attorney’s fees in connection with a dissolution decree using an abuse

       of discretion standard. Troyer v. Troyer, 987 N.E.2d 1130, 1142 (Ind. Ct. App.

       2013), trans. denied. The trial court has broad discretion in assessing attorney’s

       fees, and we will reverse only if its decision is clearly against the logic and effect

       of the facts and circumstances before it or if it misapplies the law. Fackler v.

       Powell, 923 N.E.2d 973, 981 (Ind. Ct. App. 2010).


[15]   Pursuant to Indiana Code Section 31-15-10-1, a trial court may order a party in

       a dissolution proceeding to pay a reasonable portion of the other party’s

       attorney’s fees, after considering the parties’ resources, economic condition,

       ability to engage in gainful employment and earn income, and other factors

       bearing on the reasonableness of the award. Troyer, 987 N.E.2d at 1142-43. In

       considering these factors, we promote the legislative purpose for awarding

       Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016    Page 8 of 11
       attorney’s fees, that is, to insure that a party in a dissolution proceeding who

       could not otherwise afford an attorney is able to retain representation. Id. at

       1143.


[16]   Here, the trial court found that the “equal division of the marital property

       between the parties is just and reasonable.” Appellant’s App. at 8. Wife does

       not challenge this finding. The record shows that Wife’s weekly earnings

       exceed those of Husband, that she had recently received a raise, and that she is

       able to pay her attorney. Respondent’s Ex. A; Tr. at 137-38, 157. “[Where] the

       parties’ resources are relatively on par with each other, the only basis for an

       award of attorney fees would have been the improper actions of one party

       necessitating the incurrence of attorney fees by the other party.” Troyer, 987

       N.E.2d at 1143.


[17]   As for any improper conduct by Husband, Wife first cites his refusal to

       contribute to Daughter’s college expenses. However, the trial court specifically

       found that Daughter had repudiated her relationship with Husband.

       Appellant’s App. at 7. Wife does not challenge this finding. Also notable is

       that Daughter received academic awards and scholarships as well as a tuition

       waiver based on Father’s military service. Tr. at 135-36.


       Wife also claims that she is entitled to attorney’s fees based on Husband’s

       alleged dissipation of marital funds. Dissipation is a factor to be considered in

       the context of determining whether the trial court may deviate from the

       presumption in favor of equal distribution of marital property under Indiana


       Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016   Page 9 of 11
       Code 31-15-7-5. Here, Wife does not challenge the trial court’s special finding

       that an equal distribution of marital property is just and reasonable. Instead,

       she raises dissipation in the context of entitlement to attorney’s fees. We note

       that she has cited no authority pertaining to dissipation of marital assets. See,

       e.g., Estudillo v. Estudillo, 956 N.E.2d 1084, 1094 (Ind. Ct. App. 2011) (“The test

       for dissipation is whether the assets were actually wasted or misused.

       Dissipation has also been described as frivolous or unjustified spending of

       marital assets, including the concealment of marital property. In determining

       whether dissipation has occurred, a court should consider: (1) whether the

       dissipating party had the intent to hide, deplete, or divert the marital asset; (2)

       whether the expenditure benefited the marital enterprise or was made for a

       purpose entirely unrelated to the marriage; (3) whether the transaction was

       remote in time and effect or occurred just before the filing of a divorce petition;

       and (4) whether the expenditure was excessive or de minimis”) (citations and

       internal quotation marks omitted). As such, Wife has waived this issue for

       review pursuant to Indiana Appellate Rule 46(A)(8)(a). Hartley, 862 N.E.2d at

       284.


[18]   To the extent that Wife uses the term dissipation to characterize Husband as

       having engaged in improper conduct justifying an award of attorney’s fees, we

       note the following. Petitioner’s Exhibit 8 and Respondent’s Exhibit AA list

       Husband’s expenditures of marital funds during the pendency of the

       proceedings, including basic living expenses and sums for homeowner’s

       insurance, air travel, legal fees, and a retirement account deposit. The fact that


       Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016   Page 10 of 11
       Husband listed these expenditures and introduced them as evidence in Exhibit

       AA indicates that he was not attempting to conceal them. Moreover, most of

       the expenditures relate to the preservation rather than the depletion of marital

       assets such as the marital residence and the retirement accounts. With respect

       to air travel, Husband took a trip to Arizona in connection with his clinical

       depression, and it does not appear frivolous or excessive. As for his legal fees, it

       is unclear whether the trial court accounted for this expenditure in determining

       that an equal division was just and reasonable and in reaching its final division

       of the assets and ordering Husband to pay an equalization judgment of

       $52,168.45. For that matter, it is unclear whether Wife made any payments to

       her attorney during the pendency of the proceedings and, if so, from what

       source. Finally, we note that Wife failed to demonstrate how these

       expenditures caused her to incur additional attorney’s fees. Simply put, Wife

       has failed to establish that the trial court abused its discretion when it denied

       her request for attorney’s fees.


[19]   In sum, we conclude that the trial court clearly erred in applying the coverture

       fraction formula, and therefore we reverse and remand for a corrected

       calculation as well as any adjustments necessary to accomplish an equal

       division of the marital estate. We affirm the trial court’s judgment in all other

       respects.


[20]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Bailey, J., concur.

       Court of Appeals of Indiana | Opinion 34A02-1509-DR-1416 |March 11, 2016   Page 11 of 11
