MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                       Jan 13 2017, 9:42 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Patrick L. Jessup                                        Chad L. Rayle
Anthony L. Kraus                                         Thompson Smith
Yoder & Kraus, P.C.                                      Smith, Smith & Rayle, P.C.
Kendallville, Indiana                                    Auburn, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Rachea Eytcheson,                                        January 13, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         57A03-1607-DR-1711
        v.                                               Appeal from the Noble Circuit
                                                         Court
Jason Eytcheson,                                         The Honorable G. David Laur,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         57C01-1512-DR-223



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017   Page 1 of 6
                                          Case Summary
[1]   In this divorce case, the trial court set aside one-third of Jason Eytcheson’s

      (Husband) 401(k) account to him and then divided the remainder equally

      between Husband and Rachea Eytcheson (Wife). The court, following

      Husband’s lead, reasoned that Husband had the 401(k) account for eight

      years—or one-third of the account’s age—before the parties were married.

      Wife argues that this was error. Because Husband did not present any evidence

      of the amount he contributed to his 401(k) account during those eight years or

      the value of his account when the parties got married, we conclude that the trial

      court abused its discretion in setting aside one-third of Husband’s 401(k)

      account to him. We therefore order the trial court to include this amount in the

      marital pot for division.



                            Facts and Procedural History
[2]   Husband and Wife were married in December 1999. Husband began

      participating in a 401(k) plan through his employer in April 1992; he continued

      participating in the 401(k) plan throughout his marriage to Wife. Wife filed for

      divorce in December 2015.


[3]   At the final dissolution hearing in June 2016, the major contention was

      Husband’s 401(k) account. Husband submitted Exhibit B, which was a

      quarterly statement from his 401(k) account valuing it at $237,419.76 as of




      Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017   Page 2 of 6
      September 30, 2015.1 The parties agreed on the value; however, they disagreed

      how to divide it.2 Wife’s attorney argued that there was no evidence as to the

      401(k) account’s value when they got married in December 1999 and that the

      account should be divided evenly. In response, Husband’s attorney said he

      tried to get a value of the 401(k) account in December 1999 but could not. As

      such, he felt that the “reasonable” way to divide the 401(k) account was to set

      aside one-third of the $237,419.76 to Husband and then divide the remainder

      equally. Husband’s attorney reasoned that Husband’s 401(k) account was

      twenty-four years old and Husband had the account for eight, or one-third, of

      those years before the parties were married. Tr. p. 34.

[4]   The trial court agreed with Husband. Accordingly, the court set aside one-

      third, or $79,139.92, to Husband and then divided the remaining $158,279.84

      equally between Husband and Wife, giving $79,139.92 to each of them.

      Appellant’s App. Vol. II, p. 11, 15. Due to Husband’s superior earning

      capacity—“in that [Husband] earns six (6) times more than Wife”—the court

      “deviate[d] from the presumptive equal division” and awarded Wife 55% of the




      1
       This was the value according to the most recent quarterly statement when Wife filed for divorce, which was
      before the December 30, 2015 quarterly statement. Tr. p. 33.
      2
       Wife’s attorney told the trial court that up until 5:30 p.m. the night before the final hearing, the parties had
      agreed to split the $237,419.76 evenly. See Tr. p. 30.

      Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017                Page 3 of 6
      “net” marital assets and Husband 45%. Id. at 11. Notably, the net marital

      assets did not include the $79,139.92 that had been set aside to Husband.3

[5]   Wife now appeals.



                                  Discussion and Decision
[6]   Wife contends that the trial court erred in setting aside $79,139.92 from

      Husband’s 401(k) account to him because Husband did not present any

      evidence regarding the extent to which he contributed to his 401(k) account

      before their marriage or the account’s value when they got married. The

      division of marital property is highly fact sensitive. In re Marriage of Marek, 47

      N.E.3d 1283, 1287 (Ind. Ct. App. 2016), trans. denied. It is a task within the

      sound discretion of the trial court, and we will reverse only for an abuse of

      discretion. Id.


[7]   Indiana Code chapter 31-15-7 governs the disposition of marital assets in a

      dissolution proceeding. Indiana Code section 31-15-7-4 provides that the trial

      court shall divide the property of the parties in a “just and reasonable manner,”

      whether that property was owned by either spouse before the marriage,

      acquired by either spouse in his or her own right after the marriage and before

      final separation, or acquired by their joint efforts. This “one pot” theory of




      3
       If the $79,139.92 that was set aside to Husband was included, then Wife actually received 43.76% of the
      marital assets while Husband received 56.24%.

      Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017          Page 4 of 6
      marital property ensures that all marital assets are subject to the trial court’s

      power to divide and award. Marek, 47 N.E.3d at 1288.


[8]   “The court shall presume that an equal division of the marital property between

      the parties is just and reasonable.” Ind. Code § 31-15-7-5. However, the

      presumption of equal division may be rebutted by a party who presents

      evidence that an equal division would not be just and reasonable because of the

      contribution each spouse made to the acquisition of property; the extent to

      which property was acquired before the marriage or through inheritance or gift;

      the economic circumstances of each spouse at the time of dissolution; the

      conduct of the parties during the marriage relating to their property; and the

      earnings or earning ability of each party. Id. The party seeking to rebut the

      presumption of equal division bears the burden of proof of doing so. Id.


[9]   Here, the trial court set aside one-third of Husband’s 401(k) account to him

      because he had the 401(k) account for eight years—or one-third of the account’s

      age—before the parties were married. However, there is no evidence in the

      record regarding how much Husband actually contributed to his 401(k) account

      during those eight years or the account’s value when he and Wife got married

      in December 1999. The only evidence Husband presented was how much his

      401(k) account was valued on September 30, 2015, approximately sixteen years

      after the relevant date. Ex. B. As Wife argues on appeal, Husband could have

      made smaller contributions during those initial eight years, when his salary was

      most likely smaller, or there could have been market fluctuations during that

      time period. It is always the burden of the spouse seeking segregation of an

      Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017   Page 5 of 6
       asset from the marital estate to prove the grounds for the segregation and the

       amount to be segregated. Morey v. Morey, 49 N.E.3d 1065, 1073 (Ind. Ct. App.

       2016). Husband has failed to meet this burden by not presenting competent

       evidence regarding the amount to be segregated. See id. (“At the hearing,

       Husband testified that his Reynolds pension, annuity, and 401(k) started

       accruing when his employment began in 1983. He also testified that he did not

       know the value of either the Reynolds pension or 401(k) on the date of

       marriage and that he was not completely vested in the Reynolds pension or the

       401(k) during part [of] the eight years he worked at Reynolds prior to marriage.

       . . . We agree with the trial court that Husband did not carry his burden on this

       issue . . . .” (emphasis added)). Accordingly, the trial court abused its discretion

       in setting aside one-third of Husband’s 401(k) account to him. We therefore

       reverse the trial court on this issue and order it to include the $79,139.92 in the

       marital pot. And because of Husband’s superior earning capacity, as

       recognized by the trial court, Wife should receive 55% of the marital assets

       while Husband should receive 45%.

[10]   Reversed and remanded.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1607-DR-1711 | January 13, 2017   Page 6 of 6
