MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Oct 26 2015, 8:29 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Karen A. Wyle
Zachary J. Stock, Attorney at Law P.C.                   Bloomington, Indiana
Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Greg Rink,                                               October 26, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         29A02-1503-DR-189
        v.                                               Appeal from the Hamilton
                                                         Superior Court
Emily Rink,                                              The Honorable Daniel J. Pfleging
Appellee-Respondent                                      Trial Court Cause No.
                                                         29D02-1312-DR-011312



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 1 of 16
                                          Case Summary
[1]   Greg Rink (“Husband”) and Emily Rink (“Wife”) divorced in 2015. Husband

      challenges the final order with respect to specific facets of the trial court’s

      division of the property in the marital estate.


[2]   We affirm.



                                                   Issues
[3]   Husband presents two issues for our review. We restate these as:

                I.     Whether the trial court erred when it equally divided the
                       estate despite a post-nuptial agreement calling for a refund
                       to Husband of a $150,000 down payment upon sale of a
                       residence; and
               II.     Whether the trial court erred when it relied upon Wife’s
                       testimony to determine the value of a business interest held
                       by Husband.


                            Facts and Procedural History
[4]   Husband and Wife were married in 2008. Each spouse owned a home prior to

      the marriage; Husband owned a residence in Pennsylvania, and Wife owned a

      home in Maryland. Both Husband and Wife had separate investment

      portfolios. Each worked in pharmaceutical sales. Two children were born to

      the couple, one in 2008, and one in 2009.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 2 of 16
[5]   Until 2011, the family lived in Pennsylvania. 1 In 2011, Wife obtained

      employment in Indiana and relocated. Husband remained out of the state with

      the children for several months, but eventually Husband obtained employment

      in Indiana and relocated with the children. Husband sold the Pennsylvania

      residence, which yielded cash of $150,000. The couple agreed that they would

      use the proceeds of the sale of that home as a down payment on a home in

      Indiana (“the Carmel residence”). Husband drafted a written agreement to this

      effect, which Husband and Wife signed; their signatures were witnessed by an

      acquaintance of Husband, Todd Hollingsworth (“Hollingsworth”). The

      agreement provided, in relevant part:

               This letter is being written, and to be recognized as [a] mutually
               signed and agreed upon official document to the State of Indiana,
               and/or the Hamilton County Judicial process regarding the
               down payment and new home purchase [for the Carmel
               residence] as referenced below.


               In the unlikely event that the undersigned husband and wife,
               [Husband], and [Wife] should separate and/or divorce, that the
               initial home purchase down payment of $150,000.00 (one
               hundred and fifty thousand USD) made solely by [Husband] will
               be refunded and or reallocated to him as a result of the final sale
               of the home…


      Ex. 13




      1
       Wife rented the Maryland residence to a tenant, and continued to do so at all relevant times in these
      proceedings.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015           Page 3 of 16
[6]    The marriage between Husband and Wife was troubled. After an argument

       with Wife, Husband left the Carmel residence in November 2013. On

       December 4, 2013, Husband filed a petition seeking dissolution of the marriage.


[7]    During the course of the marriage, Husband had been employed but had, on a

       number of occasions, lost his employment. Also during the marriage, Husband

       used marital assets to invest in private businesses. During the pendency of the

       martial dissolution proceedings, Husband was unemployed, but continued to

       manage his investment portfolio. Also during the pendency of the proceedings,

       the trial court ordered Husband to pay child support of $166.17 per week.


[8]    A final hearing was conducted on January 7, 2015. Testimony was offered

       concerning the couple’s finances, each parent’s plans for education and care of

       the children, and numerous other issues. After taking the evidence under

       advisement, on February 27, 2015, the trial court entered its final order in the

       form of written findings and conclusions.


[9]    In its final order, the trial court found that Husband had accumulated a child

       support arrearage of $21,241.22. The court found that Husband was

       purposefully unemployed, and imputed weekly income to Husband of

       $1,525.50, and determined child support based upon Husband’s imputed

       income and Wife’s actual income of $2,222.00 per week.


[10]   The court found that the value of the marital estate, net liabilities, was

       $1,847,973; of this, $1,083,151 was contributed by Husband, and $764,822 was

       contributed by Wife. Among the assets included in this total was an interest

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 4 of 16
       Husband held in a business that Wife valued at $200,000, but which Husband

       insisted was bankrupt. Husband also claimed that his interests in two other

       businesses were also nearly valueless because those businesses, too, were near

       bankruptcy. Husband testified that he had used funds from investment

       accounts to purchase his interests in these businesses. However, the trial court

       found that Husband’s “failure to acknowledge” the existence and value of an

       investment account valued at $423,000 “greatly undermine[d] his credibility as

       it pertaine[d] to testimony regarding the marital estate, and his testimony

       concerning his ability to support his children.” The trial court also found that,

       by failing to earn income during the litigation, Husband had dissipated assets.


[11]   The trial court ordered that the marital estate be divided equally between the

       parties, in compliance with the statutory presumption. The trial court

       concluded that Husband was not entitled to a $150,000 offset for the value of

       the Pennsylvania residence, the proceeds from the sale of which had been used

       as a down payment for the Carmel residence. In light of this decision and

       Husband’s child-support arrearage, the trial court ordered Husband to pay Wife

       $180,405.72, which consisted of an equalization payment of $159,164.50 and

       the child support arrearage of $21,241.22. As part of the property division, the

       court ordered that Wife would retain possession of the Carmel residence subject

       to indebtedness on the home, ordered Wife to hold Husband harmless as to that

       indebtedness, and ordered Wife to refinance the residence within two years of

       the date of the final order.


[12]   Husband now appeals.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 5 of 16
                                  Discussion and Decision
                                         Standard of Review
[13]   On appeal, Husband challenges specific aspects of the final order. In entering

       its final order, the trial court entered findings and conclusions without a written

       request from either party. We review a trial court’s findings to determine if they

       are clearly erroneous, but review its conclusions de novo, even where the trial

       court labels them as findings. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.

       2002). Where a party challenges a division of marital assets as not being just

       and reasonable, we review the trial court’s order for an abuse of discretion. Id.


[14]   In determining the value of an asset, there is no abuse of discretion if there is

       sufficient evidence and reasonable inferences that support the trial court’s result.

       Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). We consider the evidence in

       a light most favorable to the judgment and do not reweigh evidence Id. Nor

       will we reassess the credibility of witnesses. Hendricks v. Hendricks, 784 N.E.2d

       1024, 1027 (Ind. Ct. App. 2003).


                                    Post-Nuptial Agreement
[15]   We turn first to Husband’s argument on appeal that the trial court erred when it

       did not enforce the agreement between Husband and Wife concerning the

       disposition of the $150,000 used as a down payment on the Carmel residence.

       On appeal, Husband contends that the trial court should have honored the

       agreement as a valid post-nuptial agreement, and that the trial court erred when

       it did not award him a refund of the money.
       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 6 of 16
[16]   The agreement at issue provided, in relevant part:

               This letter is being written, and to be recognized as mutually
               signed and agreed upon official document to the State of Indiana,
               and/or the Hamilton County Judicial process regarding the
               down payment and new home purchase [for the Carmel
               residence] as referenced below.


               In the unlikely event that the undersigned husband and wife,
               [Husband], and [Wife] should separate and/or divorce, that the
               initial home purchase down payment of $150,000.00 (one
               hundred and fifty thousand USD) made solely by [Husband] will
               be refunded and or reallocated to him as a result of the final sale
               of the home…


       Ex. 13. Husband contends that this was a valid post-nuptial agreement and that

       the court was required to enforce it. Having failed to do so, Husband argues,

       the trial court erred.


[17]   Indiana’s statutes presume that, in a dissolution of marriage, each spouse will

       receive exactly half of the assets of the marital estate. Ind. Code § 31-15-7-5.

       That presumption may be rebutted. Id. Where a trial court deviates from the

       presumed 50/50 split, it must articulate its reasons for doing so. Thompson v.

       Thompson, 811 N.E.2d 888, 912-13 (Ind. Ct. App. 2004), trans. denied. In

       addition, our statutes provide for the enforceability of post-nuptial agreements

       that would lead to a different result:


               (a) To promote the amicable settlements of disputes that have
               arisen or may arise between the parties to a marriage attendant
               upon the dissolution of their marriage, the parties may agree in
               writing to provisions for:
       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 7 of 16
                 (1) the maintenance of either of the parties;


                 (2) the disposition of any property owned by either or both
                 of the parties; and


                 (3) the custody and support of the children of the parties.


        (b) In an action for dissolution of marriage:


                 (1) the terms of the agreement, if approved by the court,
                 shall be incorporated and merged into the decree and the
                 parties shall be ordered to perform the terms; or


                 (2) the court may make provisions for:


                         (A) the disposition of property;


                         (B) child support;


                         (C) maintenance; and


                         (D) custody;


        as provided in this title.


        (c) The disposition of property settled by an agreement described
        in subsection (a) and incorporated and merged into the decree is
        not subject to subsequent modification by the court, except as the
        agreement prescribes or the parties subsequently consent.


Ind. Code § 31-15-2-17.


Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 8 of 16
[18]   As this Court has observed:

               Other panels of this Court have recognized that “public policy
               favors the amicable settlement by written agreement of the
               property rights of citizens whose marriage is being dissolved.”
               Gaskell v. Gaskell, 900 N.E.2d 13, 17 (Ind. Ct. App. 2009) (citing
               Flansburg v. Flansburg, 581 N.E.2d 430, 433 (Ind. Ct. App. 1991),
               trans. denied). It has long been held that antenuptial agreements
               are valid and binding “so long as they are entered into freely and
               without fraud, duress, or misrepresentation and are not, under
               the particular circumstances of the case, unconscionable[,]” In re
               Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985), and we have
               concluded that the same should apply to reconciliation
               agreements made between parties in order to preserve the
               marriage. Flansburg, 581 N.E.2d at 436.


       Hall v. Hall, 27 N.E.3d 281, 284-85 (Ind. Ct. App. 2015), trans. denied.


[19]   Here, Husband contends that the agreement concerning the down payment for

       the Carmel residence is a valid post-nuptial or reconciliation agreement, and

       that he is entitled to repayment of the $150,000. Wife argues that the

       agreement is not a valid reconciliation agreement because by its own terms the

       agreement was not entered into in order to preserve the marriage, and because a

       necessary condition for its enforcement had not yet been met.


[20]   The trial court’s order is largely silent as to the validity of the agreement. The

       court appears to have accepted the agreement’s validity, but also seems to have

       declined enforcement of the agreement on the basis of dissipation of marital

       assets: “The Court further finds that Husband has dissipated marital assets

       through failing to earn any income… The Court therefore finds that husband is

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 9 of 16
       not entitled to an offset of $150,000.” Despite these statements—in particular

       the finding of dissipation—the trial court nevertheless divided the marital estate

       evenly between the parties. Based upon a determination that the total value of

       the marital estate was $1,847,973, and after deducting from the award to Wife

       of $180,405.72 the $21,241.22 Husband owed in child support, the court’s

       award to Wife represents exactly the amount required to equalize the marital

       estate between Husband’s assets ($1,083,151) and those of Wife ($764,822):

       $159,164.50. 2 Thus, the trial court’s order did not deviate from the statutory

       presumption.


[21]   To the extent that Husband contends he was entitled to an offset, then, he must

       establish that the trial court erred in not deviating from the statutory

       presumption of a 50/50 split of the marital estate. He argues that the trial court

       erred in this regard when it did not grant him an offset against the division of

       assets based upon the agreement for refund of the down payment on the Carmel

       residence.


[22]   The agreement, by its terms, entitles husband to refund of the down payment

       monies “as a result of the final sale of the home,” Ex. 13, that is, final sale of

       the Carmel residence. But there has been no final sale. The trial court’s order

       requires only that Wife refinance the Carmel residence; refinancing the




       2
        The total value of the marital estate was $1,847,973. Equal division of this amount between the parties
       yields $923,986.50 each for Husband and Wife. Assets Wife contributed to the marriage totaled $764,822; to
       equalize the assets, Wife was entitled to an additional $159,164.50 in assets from Husband.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015        Page 10 of 16
       mortgage on a residence is not, however, a final sale. By the plain language of

       the agreement, then, Husband was thus not entitled to a $150,000 refund of the

       money used as a down payment on the Carmel residence. We cannot agree

       with Husband that the trial court erred when it did not order an offset or other

       refund of the down payment.


[23]   We disagree with Wife, however, as to the enforceability vel non of the

       agreement. The language of the agreement is clear: Husband agreed to the use

       of the $150,000 from the sale of the Pennsylvania residence, and Wife agreed

       that, should the couple divorce, Husband would receive a refund of the down

       payment upon final sale of the Carmel residence. 3 Whether this is a

       reconciliation agreement or simply a post-nuptial agreement, neither party has

       argued that there was fraud, duress, misrepresentation, or unconscionability

       that would invalidate the agreement. See Hall, 27 N.E.3d at 284-85.


[24]   Upon final sale of the residence at some future date, Husband may be entitled

       to repayment of the $150,000 from Wife. But that time has not yet arrived. We

       therefore find no error in the trial court’s decision not to grant Husband a

       $150,000 offset against the 50/50 presumption.




       3
         The language of the agreement appears to presume that Wife would be the selling party, and the trial court
       found that the Carmel residence was held in Wife’s name.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015          Page 11 of 16
                                 Valuation of Business Interest
[25]   We turn now to Husband’s other issue on appeal, whether the trial court relied

       upon appropriate evidence in determining the value of a business in which

       Husband held an ownership interest.


[26]   In a dissolution of marriage proceeding, the trial court “shall divide the

       property of the parties.” I.C. § 31-15-7-4(a). “The court shall divide the

       property in a just and reasonable manner,” and may order distribution of those

       assets in any number of ways. I.C. § 31-15-7-4(b). In arriving at a value for the

       marital estate, “a trial court has broad discretion in determining the date upon

       which to value marital assets, and may select any date between the date of the

       filing of the petition for dissolution and the date of the final hearing.” Nowels v.

       Nowels, 836 N.E.2d 481, 485 (Ind. Ct. App. 2005). It is the burden of the parties

       to provide evidence of the values of marital assets. Campbell v. Campbell, 993

       N.E.2d 205, 215 (Ind. Ct. App. 2013), trans. denied. “Even where the

       circumstances would support a different award, we do not substitute our

       judgment for that of the trial court.” Nowels, 836 N.E.2d at 485.


[27]   Here, Husband asserts that the trial court abused its discretion in its valuation of

       his interest in a business called JJ Pharma. 4 Husband and Wife agree that

       Husband invested $200,000 in the business. They disagree, however, as to the




       4
         JJ Pharma appears to have successor entities, the relationship of which to JJ Pharma is not clear from the
       record. We refer to the business as JJ Pharma throughout.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015           Page 12 of 16
       trial court’s use of that figure in its valuation of the business for purposes of the

       determination and distribution of the marital estate. Husband contends that the

       trial court abused its discretion because he testified that JJ Pharma was

       “basically bankrupt,” Tr. at 57, and thus the trial court’s assignment of a value

       of $200,000 for purposes of distribution of the marital assets was an abuse of

       discretion. Wife contends that setting a value of $200,000 was within the trial

       court’s discretion.


[28]   We agree with Wife. The only evidence presented by either party as to the

       value of Husband’s interest in JJ Pharma was a statement from the company

       indicating the total amount invested, a subsequent item of correspondence from

       a successor entity in 2012 stating that “in prior years the Company may not

       have met your expectations,” Ex. J, and Husband’s testimony that JJ Pharma

       was “basically bankrupt.” Tr. at 57. However, the trial court made an express

       finding that Husband’s testimony was not credible as to financial matters: “the

       Court finds the Husband’s failure to acknowledge [a] Scottrade [brokerage

       account] of $423,000 greatly undermines his credibility as it pertains to his

       testimony regarding the marital estate, and his testimony concerning his ability

       to support his children.”


[29]   Thus, the trial court concluded that Husband’s testimony concerning JJ

       Pharma’s financial state and the value of the investment was not credible. The

       court accordingly was left to set the value of the investment with only one item

       of evidence: the $200,000 amount invested in the business. While Husband

       argues that we need not reweigh evidence to reverse the trial court’s decision,

       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 13 of 16
       his argument boils down to just such a request. That the trial court could have

       reached a different result does not mean that we must do so, Nowels, 836

       N.E.2d at 485, and we cannot reassess the credibility of witnesses or reweigh

       evidence. Quillen, 671 N.E.2d at 102; Hendricks, 784 N.E.2d at 1027. We

       accordingly find no abuse of discretion in the trial court’s valuation of

       Husband’s interest in JJ Pharma, and we leave undisturbed the trial court’s

       decision regarding the distribution of marital assets.



                                               Conclusion
[30]   The trial court did not err when it did not grant Husband a $150,000 offset

       related to the use of funds for a down payment on the marital residence. The

       trial court did not abuse its discretion when it assessed the value of a business

       interest at $200,000.


[31]   Affirmed.


       Mathias, J., concurs.


       Baker, J., concurs in result in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 14 of 16
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Greg Rink,                                               Court of Appeals Case No.
                                                                29A02-1503-DR-189
       Appellant-Petitioner,

               v.

       Emily Rink,
       Appellee-Respondent.




       Baker, Judge, concurring in result in part.

[32]   While I fully agree with the result reached by the majority, I part ways with its

       analysis with respect to the parties’ post-nuptial agreement. As the majority

       concludes, the agreement between Husband and Wife is valid, binding, and

       enforceable whether it “is a reconciliation agreement or simply a post-nuptial

       agreement[.]” Slip op. p. 11. I disagree, however, with the majority’s

       determination that the agreement does not come into effect until some future

       date when Wife sells the residence. The time for division of the marital pot is at

       the time of dissolution, and drawing this out into the future is not fair to the

       parties or to their children.


[33]   In my view, therefore, the trial court should have initially awarded $150,000 to

       Husband pursuant to the post-nuptial agreement. That said, the trial court’s

       findings regarding dissipation of marital assets, underemployment, and a child


       Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 15 of 16
support arrearage would readily support a determination that the $150,000 is

offset by virtue of those findings. In other words, even if Husband was

originally awarded the $150,000, I believe that the final result reached by the

trial court, which amounts to a 50/50 division of the marital estate, is supported

by the trial court’s findings of fact and conclusions thereon. To reach a

different result would require us to reweigh evidence and assess witness

credibility, which we will not do. Consequently, I agree that the trial court’s

judgment should be affirmed and concur in the result reached by the majority

on this issue. In all other respects, I fully concur with the majority opinion.




Court of Appeals of Indiana | Memorandum Decision 29A02-1503-DR-189 | October 26, 2015   Page 16 of 16
