                                                                    Feb 27 2015, 6:56 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Brent R. Dechert                                           Katherine J. Noel
Kokomo, Indiana                                            Kokomo, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Mary Ann Crider,                                          February 27, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          34A02-1403-DR-210
        v.                                                Appeal from the Howard Superior
                                                          Court.

Robert Crider,                                            The Honorable Brant J. Parry, Judge.
                                                          Cause No. 34D02-1204-DR-308
Appellee-Petitioner.




Riley, Judge.




Court of Appeals of Indiana | Opinion | 34A02-1403-DR-210 | February 27, 2015              Page 1 of 9
                                    STATEMENT OF THE CASE

[1]   Appellant-Respondent, Mary Ann C. Crider (Wife), appeals the trial court’s

      division of marital property in the dissolution of her marriage to Appellee-

      Petitioner, Robert D. Crider (Husband).


[2]   We reverse and remand for further proceedings.


                                                      ISSUE

[3]   Wife raises one issue on appeal, which we restate as follows: Whether the trial

      court erred in its calculation and division of the marital estate.


                            FACTS AND PROCEDURAL HISTORY

[4]   Husband and Wife were married on October 15, 1989. Throughout their

      marriage, Husband and Wife lived in Greentown, Howard County, Indiana.

      No children were born of the marriage, but both parties have adult children

      from prior marriages. Husband and Wife are retired.


[5]   After more than twenty-two years of marriage, on April 2, 2012, Husband filed

      a Verified Petition for Legal Separation, and on June 28, 2012, he filed a

      Petition to Convert Legal Separation to Dissolution. On November 25, 2013,

      the trial court conducted the final hearing of the dissolution proceedings. On

      December 30, 2013, the trial court issued the Decree of Dissolution, granting

      the divorce and distributing the various items of marital property. With the

      exception of Wife’s $75,000 inheritance, the trial court determined that the

      Court of Appeals of Indiana | Opinion | 34A02-1403-DR-210 | February 27, 2015   Page 2 of 9
      remainder of the estate should be equally divided between the parties. The

      distribution resulted in a net award of $276,692.52 (44%) to Husband and

      $351,693.53 (56%) to Wife. In order to effectuate its division, the trial court

      ordered Husband to make an equalization payment of $37,992.52 to Wife.


[6]   On January 7, 2014, Husband filed a motion to correct error, alleging that the

      trial court mistakenly ordered the equalization judgment in Wife’s favor. On

      January 9, 2014, the trial court granted Husband’s motion and corrected its

      order to reflect that Wife should pay Husband the equalization sum. Then on

      January 29, 2014, Wife filed her own motion to correct error. In part, Wife

      asserted that the trial court erred by attributing the value of a tract of Florida

      real estate to her share of the marital estate and by failing to credit Wife for

      paying the parties’ 2010 tax debt. On February 26, 2014, the trial court denied

      Wife’s motion.


[7]   Wife now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                             I. Standard of Review

[8]   In its Decree of Dissolution, the trial court sua sponte issued specific findings of

      fact and conclusions thereon. Accordingly, on appeal, our court will “not set

      aside the findings or judgment unless clearly erroneous, and due regard shall be

      given to the opportunity of the trial court to judge the credibility of the

      witnesses.” Ind. Trial Rule 52(A). In determining whether the findings or

      judgment are clearly erroneous, we first consider whether the record supports


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      the findings and, second, whether those findings support the judgment.

      Granzow v. Granzow, 855 N.E.2d 680, 683 (Ind. Ct. App. 2006). Findings are

      clearly erroneous if there are no facts in the record to support them either

      directly or by inference, and a judgment is clearly erroneous if the wrong legal

      standard is applied to properly found facts. Birkhimer v. Birkhimer, 981 N.E.2d

      111, 118 (Ind. Ct. App. 2012), reh’g denied. In order to find “that a finding or

      conclusion is clearly erroneous, our review of the evidence must leave us with

      the firm conviction that a mistake has been made.” Leonard v. Leonard, 877

      N.E.2d 896, 900 (Ind. Ct. App. 2007). For any issue not covered by the trial

      court’s findings, we apply the general judgment standard and will affirm “if it

      can be sustained on any legal theory supported by the evidence.” Id.


[9]   In addition, the division of marital assets is a matter reserved to the trial court’s

      sound discretion, and we will reverse only for an abuse of that discretion.

      O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct. App. 2008). We do not

      reweigh evidence or assess the credibility of witnesses, and we will consider

      only the evidence that is most favorable to the trial court’s disposition of the

      marital estate. Id. The party challenging the trial court’s division of marital

      property bears the burden of overcoming “a strong presumption that the trial

      court considered and complied with the applicable statute, and that

      presumption is one of the strongest presumptions applicable to our

      consideration on appeal.” Id. (internal quotation marks omitted).




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                                                 II. Marital Estate

[10]   Wife claims that the trial court erred in its calculation and division of the

       marital estate by including a tract of real estate, 1411 Elana Place, Lady Lake,

       Florida (Florida Property), as part of the marital pot and by excluding a 2010

       debt owed to the Internal Revenue Service (IRS). In an action for dissolution of

       marriage, the trial court is required to divide the property of the divorcing

       spouses “in a just and reasonable manner.” Ind. Code § 31-15-7-4(b). Indiana

       courts utilize a “one-pot” method for calculating and distributing marital

       property, whereby all property is included in the marital pot and subject to

       division, regardless of whether it was

               (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.
       I.C. § 31-15-7-4(a); Estudillo v. Estudillo, 956 N.E.2d 1084, 1090 (Ind. Ct. App.

       2011), reh’g denied. There is a rebuttable presumption that “an equal division of

       the marital property between the parties is just and reasonable.” I.C. § 31-15-7-

       5. In this case, the trial court found that Wife’s substantial inheritance justified

       a deviation from an equal split. See I.C. § 31-15-7-5(2)(B). After awarding Wife

       with the full $75,000 inheritance, the trial court equally divided the remainder

       of the estate between the parties.


                                                A. Florida Property

[11]   Wife first contends that the trial court erroneously included the Florida

       Property as part of the marital pot. At the final hearing, Wife explained that
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       she gifted $14,000 to her daughter for a down payment on the Florida Property

       and that she co-signed the mortgage for her daughter. Wife insisted that her

       daughter owns the Florida Property; thus, it does not constitute marital

       property. The trial court disagreed and made the following findings:

               11. [Wife] used marital assets to purchase [the Florida Property].
               12. The Mortgage on that property is in [Wife’s] name.
               13. [Wife] indicated that she intends to reside in this home after the
               dissolution is granted.
               14. Other than [Wife’s] own testimony, there was no evidence
               presented that this property belonged to [Wife’s] daughter.
               15. This property is a marital asset.
               16. The value of the property is $136,000.00.
               17. The debt on the property [is] $67,597.35.
       (Appellant’s App. pp. 16-17). The trial court allocated the Florida Property to

       Wife as an asset worth $68,402.65.


[12]   The parties do not dispute that the Florida Property was purchased in May of

       2012—that is, after Husband filed the petition for separation but prior to the

       petition for dissolution. In Indiana, it is well established that the determination

       of which property must be included as part of the marital estate is based on the

       date of the parties’ final separation. Webb v. Schleutker, 891 N.E.2d 1144, 1149

       (Ind. Ct. App. 2008). Only property that is acquired prior to the date of final

       separation is subject to division by the trial court as part of the marital pot.

       Granzow, 855 N.E.2d at 684. In general, the date of “final separation” refers to

       the date that the petition for dissolution is filed. Id. at 683. In the present case,

       legal separation proceedings were pending when Husband filed the petition for

       dissolution. As a result, April 2, 2012—the date that Husband filed the petition


       Court of Appeals of Indiana | Opinion | 34A02-1403-DR-210 | February 27, 2015    Page 6 of 9
       for legal separation—is considered to be the parties’ final separation date (Filing

       Date). See I.C. § 31-9-2-46. As the Florida Property is a post-Filing Date

       acquisition, Wife posits that it “should not be considered as part of the ‘marital

       pot.’” (Appellant’s Br. p. 14). On the other hand, Husband argues that the trial

       court properly included the Florida Property as part of the marital estate

       because Wife “purchased [it] with money accumulated by the parties’ joint

       efforts.” (Appellee’s Br. p. 3). We agree with Wife.


[13]   Notwithstanding the trial court’s findings concerning Wife’s ownership interest

       in the Florida Property, we hold that it does not constitute marital property

       because it was procured subsequent to the Filing Date. I.C. § 31-15-7-4(a); see

       Estudillo, 956 N.E.2d at 1091 (noting that the trial court may not distribute

       property that is not owned by the parties). A review of the record reveals that,

       during the marriage, the parties opened a joint account with Ameriprise

       Financial (Ameriprise), which consisted entirely of Wife’s IRA funds. The trial

       court valued the Ameriprise account at $175,418.98 as of the Filing Date.

       Thereafter, Wife stated that she withdrew $14,000 from the Ameriprise account

       for her daughter’s down payment, such that the account contained

       approximately $160,000 by the time of the final hearing. Nevertheless, the trial

       court awarded the Ameriprise account to Wife as an asset still worth

       $175,418.98. Therefore, to the extent that Wife inappropriately expended

       marital assets after the Filing Date, we find that the trial court effectively

       charged the expenditure against her share of the estate. Accordingly, we find

       that the trial court clearly erred by including the Florida Property as marital


       Court of Appeals of Indiana | Opinion | 34A02-1403-DR-210 | February 27, 2015   Page 7 of 9
       property, and we remand with instructions for the trial court to recalculate and

       redistribute, if necessary, the marital estate.


                                                    B. Tax Debt

[14]   Wife also contends that the trial court erred by failing to include the parties’

       2010 tax debt as part of the marital estate. During the final hearing, Wife

       offered into evidence an IRS notice, which was dated July 30, 2012, and was

       addressed to both Husband and her. The notice stated that due to a

       discrepancy between the IRS’ information and their 2010 tax return, the parties

       owed a tax obligation of $1,965. Wife testified that she paid the outstanding

       balance prior to the final hearing and, as such, now asserts that she should have

       received a credit against her share of the marital assets.


[15]   The trial court did not issue any findings pertaining to the IRS debt, so it is not

       clear that the court factored this liability into its calculation of the value of the

       marital estate. We reiterate that all marital property goes into the marital pot

       for division, which includes both the assets and liabilities of the spouses.

       Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999), reh’g denied;

       trans. denied. Here, the unrefuted evidence establishes that, after the Filing

       Date, the parties received notice of a tax debt that arose prior to the parties’

       separation. Our court has previously found that a post-filing date tax refund

       should have been divided as a marital asset because it “represent[ed] [the]

       return of taxes which were overpaid during the marriage.” Moore v. Moore, 695

       N.E.2d 1004, 1010 (Ind. Ct. App. 1998). Similarly, the IRS notice represents

       the underpayment of taxes during the marriage. Thus, the tax debt is a marital

       Court of Appeals of Indiana | Opinion | 34A02-1403-DR-210 | February 27, 2015   Page 8 of 9
       liability and should have been considered by the trial court in fashioning an

       equitable division of property. See Birkhimer, 981 N.E.2d at 121.


[16]   Furthermore, with the exception of Wife’s inheritance, the trial court expressed

       its intent to equally divide the remaining marital property. Because Wife’s

       accounts were valued as of the Filing Date, her subsequent payment of the total

       tax debt effectively reduced her share of the marital estate, which is clearly

       inconsistent with the trial court’s intended distribution scheme. Therefore, we

       remand with instructions for the trial court to include the tax debt in the marital

       estate and to determine what portion, if any, should be allocated to Husband.


                                                CONCLUSION

[17]   Based on the foregoing, we conclude that the trial court erred by including the

       Florida Property and by excluding the IRS debt in its calculation and

       distribution of the marital estate.


[18]   Reversed and remanded for further proceedings.


[19]   Vaidik, C.J. and Baker, J. concur




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