      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                             FILED
      regarded as precedent or cited before any                                  Aug 31 2020, 8:52 am

      court except for the purpose of establishing                                      CLERK
      the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Cody P. Cogswell                                         Dawn E. Wellman
      Cogswell & Associates                                    Allen Wellman McNew Harvey
      Fishers, Indiana                                         LLP
                                                               Greenfield, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Coby Jent,                                               August 31, 2020
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               19A-DR-1411
              v.                                               Appeal from the Madison Circuit
                                                               Court
      Jerrilee Cave,                                           The Honorable Kevin M. Eads,
      Appellee-Petitioner.                                     Magistrate
                                                               Trial Court Cause No.
                                                               48C01-1608-DR-471



      Shepard, Senior Judge.


[1]   Four years ago, Jerrilee Cave (formerly known as Jerrilee Jent) petitioned to

      dissolve her marriage with Coby Jent. After extensive litigation, the trial court

      issued an order dividing the marital estate. Jent appeals from that order, as well


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020                     Page 1 of 14
      as from the denial of his motion to correct error and motion for relief from

      judgment. We affirm.


                               Facts and Procedural History
[2]   Jent and Cave married in 2006, having dated since 1999. They lived on 104

      acres of land near Markleville, Indiana (“the Markleville property”). During

      the marriage, Cave worked as a veterinarian, while Jent had various jobs and

      started several businesses, with funding from Cave’s veterinary business. One

      of the businesses, which was unsuccessful, was a hunting preserve in Ohio, for

      which the parties raised deer and other animals on the Markleville property.

      Jent and Cave separated on or around July 1, 2016. Cave petitioned for

      dissolution on August 3, 2016. Jent ultimately moved out of state.


[3]   The court held an evidentiary hearing on June 20, 2018 and scheduled

      additional dates to hear more evidence. On June 21, 2018, the court issued an

      order dissolving the parties’ marriage and restoring Jerrilee’s prior surname,

      Cave. The court delayed division of the marital estate until after the parties

      finished presenting evidence.


[4]   The court held additional evidentiary hearings on July 11, 2018, and January 9,

      2019. On March 12, 2019, it issued an order dividing marital assets and

      liabilities. We discuss the order in more detail below, but in summary the trial

      court ordered an unequal distribution of marital assets in favor of Cave. The

      court also ordered Cave to pay Jent $145,000, on or before March 1, 2020, to

      achieve “closer parity” despite the unequal distribution. Appellant’s App. Vol.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 2 of 14
      2, p. 248. The record does not reflect whether Cave paid Jent, but Cave filed

      for bankruptcy protection after the trial court issued the order dividing marital

      assets.


[5]   Jent filed a combination motion to correct error and motion for relief from

      judgment, and Cave filed a cross-motion to correct error. The trial court did

      not rule on the parties’ motions, which were deemed denied. Jent now appeals.


                                                    Issues
[6]   Jent raises the following restated issues:


                I.     Whether the trial court erred in dividing the marital estate
                       unequally in favor of Cave;


                II.    Whether the court erred in rejecting Jent’s claim that Cave
                       destroyed his personal property;


                III.   Whether the court wrongly rejected Jent’s claim that Cave
                       spoliated evidence;


                IV.    Whether the court erred in denying Jent’s motion to
                       correct error/motion for relief from judgment; and


                V.     Whether the court erred in rejecting Jent’s request that
                       Cave pay his attorneys’ fees.




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 3 of 14
                                   Discussion and Decision
                       I. Unequal Division of the Marital Estate
[7]   Jent claims the trial court erred in granting Cave a larger share of the marital

      estate. When a court divides marital assets and liabilities, “[t]he court shall

      presume that an equal division of the marital property is just and reasonable.”

      Ind. Code § 31-15-7-5 (1997). The court may determine that the presumption

      has been rebutted if a party presents evidence concerning the following factors:


              (1) The contribution of each spouse to the acquisition of the
              property, regardless of whether the contribution was income
              producing.


              (2) The extent to which the property was acquired by each
              spouse:


              (A) before the marriage; or


              (B) through inheritance or gift.


              (3) The economic circumstances of each spouse at the time the
              disposition of the property is to become effective, including the
              desirability of awarding the family residence or the right to dwell
              in the family residence for such periods as the court considers just
              to the spouse having custody of any children.


              (4) The conduct of the parties during the marriage as related to
              the disposition or dissipation of their property.


              (5) The earnings or earning ability of the parties as related to:


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 4 of 14
              (A) a final division of property; and


              (B) a final determination of the property rights of the parties.


      Id. In dividing marital property, the court must consider these factors but is not

      required to explicitly address all of them in every case. Rose v. Bozeman, 113

      N.E.3d 1232 (Ind. Ct. App. 2018). The court’s division of the marital estate “is

      highly fact-sensitive and is subject to an abuse of discretion standard.” Fobar v.

      Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). A party challenging the court’s

      decision on appeal must overcome a strong presumption that the court acted

      correctly in applying the statute. Wanner v. Hutchcroft, 888 N.E.2d 260 (Ind. Ct.

      App. 2008).


[8]   Here, the trial court noted that the “various factors” set forth in Indiana Code

      section 31-15-7-5 may rebut the presumption of an equal division of marital

      assets. Appellant’s App. Vol. 2, p. 245. The court ultimately determined an

      unequal division in favor of Cave was justified because: (1) Cave acquired

      much of the marital assets, including the Markleville property, prior to the

      parties’ marriage; and (2) Cave maintained the deer at the Markleville property

      at her own expense throughout the pendency of the divorce action. Cave’s net

      share of the marital estate, including the Markleville property (subject to a

      mortgage), the deer from the failed hunting preserve venture, and several

      vehicles, totaled $352,410. Jent’s net share of the marital estate, including the

      $145,000 payment the court ordered Cave to pay Jent, totaled $175,722.




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 5 of 14
[9]    There is ample evidence in the record to support the trial court’s division of

       assets. Cave received the house at the Markleville property during a prior

       divorce. She purchased the surrounding acreage after she and Jent had begun

       their relationship and were living together but before their marriage. The

       mortgage on the Markleville Property was in Cave’s name alone, and she alone

       made all mortgage payments before the marriage, during the marriage, and

       after the parties separated. Similarly, Cave purchased vehicles with her own

       funds before and during the marriage, and in the case of one vehicle, made

       monthly payments in her own name after she and Jent wed.


[10]   Jent argues the trial court erred because he and Cave were in a relationship

       when she acquired the Markleville property and the vehicles, and he

       contributed to the care of the deer and other animals for the hunting preserve as

       part of their business venture. This argument is a request to reweigh the

       evidence. After the parties separated and Jent moved out of the Markleville

       property, he did not offer to pay the mortgage, and he did not offer to pay for

       caring for the deer herd and other animals. In addition, Jent was to have

       maintained the property, and it was dilapidated when he left. The house

       needed serious repairs, and the stalls in a livestock barn were destroyed because

       he left six to ten inches of manure in each stall. The trial court properly relied

       upon the statutory elements set forth in Indiana Code section 31-15-7-5 while

       dividing the marital estate. See Cowden v. Cowden, 661 N.E.2d 894 (Ind. Ct.

       App. 1996) (affirming trial court’s unequal division of marital assets in favor of




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 6 of 14
       husband; trial court considered all the statutory factors, and husband brought

       considerable assets to the marriage).


[11]   Jent next argues that the unequal division of assets is so extreme as to amount

       to unjust enrichment to Cave and suggests that the trial court should have

       imposed a constructive trust for his benefit. “A constructive trust is a creature

       of equity, devised to do justice by making equitable remedies available against

       one who through fraud or other wrongful means acquires property of another.”

       Leever v. Leever, 919 N.E.2d 118, 122 (Ind. Ct. App. 2009). The remedy is

       available where there is standard fraud or a breach of duty arising out of a

       confidential or fiduciary relationship. Id.


[12]   Jent raises three allegations of wrongful conduct by Cave: (1) Cave received a

       “windfall” by receiving the deer herd, Appellant’s Br. p. 28; (2) Cave failed to

       pay the mortgage on the Markleville property, resulting in the mortgagor filing

       a foreclosure action while the dissolution case was pending; and (3) Cave filed

       for bankruptcy protection after the trial court issued the order dividing the

       marital estate to avoid paying Jent $145,000 as ordered by the court.


[13]   There is no evidence of fraudulent or other wrongful misconduct by Cave as to

       the marital estate. Cave testified that she was in dire financial straits after the

       failure of the hunting preserve business and that she was attempting to negotiate

       a resolution with the mortgagor. Further, she paid the expenses for the deer

       herd by herself for several years. By contrast, Jent admitted that he did not




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 7 of 14
       attempt to make any mortgage payments after learning of the foreclosure case,

       and he did not contribute to the maintenance of the deer herd.


[14]   Finally, there is no evidence that Cave filed for bankruptcy solely to deprive

       Jent of the court-ordered payment. To be sure, the $145,000 payment is the

       largest part of Jent’s share of the estate, but in the absence of any evidence of

       wrongful behavior, Jent’s remedy lies in the bankruptcy case (in which Cave

       listed him as a creditor), or in further trial court proceedings. The court did not

       abuse its discretion.


                      II. Alleged Destruction of Personal Property
[15]   Jent next argues the trial court erred in rejecting his claim that Cave had

       damaged or discarded his personal property. He claims that the court should

       have ordered Cave to pay damages.


[16]   The court issued findings and conclusions on its own motion. When a court

       issues such findings, we apply a two-tiered standard of review. Granzow v.

       Granzow, 855 N.E.2d 680 (Ind. Ct. App. 2006). We first determine whether the

       record supports the findings and, second, whether the findings support the

       judgment. Id. The judgment will be reversed only when clearly erroneous, that

       is when the judgment is unsupported by the findings and conclusions. Bizik v.

       Bizik, 753 N.E.2d 762 (Ind. Ct. App. 2001), trans. denied. To determine whether

       the findings or judgment are clearly erroneous, we consider only the evidence

       favorable to the judgment and all reasonable inferences, and we will not

       reweigh the evidence or assess witness credibility. Granzow, 855 N.E.2d at 684.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 8 of 14
       Any issue not covered by the findings is reviewed under a general judgment

       standard, meaning a reviewing court should affirm based on any legal theory

       supported by the evidence. Steele-Giri v. Steele, 51 N.E.3d 119 (Ind. 2016).


[17]   In this case, Cave testified during the June 20, 2018 hearing that any personal

       property Jent had left at the Markleville property had been put into a trailer,

       and the trailer had been sitting on the property for “[a]bout a year” waiting for

       Jent to retrieve it. Tr. Vol. 2, p. 46. On July 10, 2018, Jent and his father

       retrieved the trailer. The trailer’s tires were flat, and the trailer was sunken into

       the ground. When Jent’s father opened the trailer, it appeared that items had

       been thrown inside haphazardly.


[18]   During the July 11, 2018 hearing, Jent conceded that he had not had an

       opportunity to take an inventory of the trailer, and many of the items he saw

       inside were from the body shop business he had run on the Markleville

       property. He further conceded he had no evidence that Jent had kept any other

       items that belonged to him. In a later court filing, Jent claimed that after

       looking through the trailer, he discovered that almost none of his requested

       personal property was present. Some of his clothes were inside, but they had

       been sprinkled with glitter. During the January 9, 2019 hearing, Jent asked the

       trial court to award him at least “a couple of thousand bucks” for the loss of his

       property. Tr. Vol. 2, p. 51. In his motion to correct error, Jent claimed the

       value of the destroyed or missing property is approximately “$45,000.”

       Appellant’s Br. p. 34.



       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 9 of 14
[19]   The trial court did not clearly err in rejecting Jent’s claims. Jent did not provide

       an item-by-item valuation of the missing/damaged property. Further, he

       received some property in the trailer, including auto parts, that may have offset

       the other missing property. Most importantly, he did not provide any evidence

       that Cave was responsible for the missing property.


                               III. Alleged Spoliation of Evidence
[20]   Jent claims that Cave deleted Facebook posts that depicted her burning Jent’s

       personal property. He further says the trial court should have determined that

       Cave destroyed evidence and inferred that the evidence was unfavorable to her.
                                                                                                   1
       Finally, he says the court should have imposed sanctions on Cave. Intentional

       spoliation of evidence may be used to establish an inference that the spoliated

       evidence was unfavorable to the party responsible. Gribben v. Wal-Mart Stores,

       824 N.E.2d 349 (Ind. 2005). A trial court may impose sanctions, including

       “payment of reasonable expenses,” upon a party that destroys evidence. Id. at

       351. We vest trial courts with wide discretion in dealing with discovery matters

       and will reverse a trial court’s decision regarding discovery only for abuse of

       discretion. N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290

       (Ind. Ct. App. 2018).




       1
        Jent also argues Cave violated a restraining order regarding social media posts. In fact, the trial court
       explicitly declined to bar the parties from posting information about the divorce on social media. Instead, the
       court “strongly discouraged” the parties from posting material that could be detrimental to the dissolution
       case. Appellant’s App. Vol. 2, p. 25.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020                  Page 10 of 14
[21]   Here, Cave does not dispute that she deleted unspecified Facebook posts. But

       Jent did not submit any evidence indicating what the posts may have depicted.

       His counsel asserted at trial that the posts may have shown Cave burning Jent’s

       property, but conjecture by counsel is not evidence. The parties’ breakup was

       contentious, and Cave’s deleted posts may have simply been pejorative

       statements about Jent. In the absence of proof that Cave deleted posts that were

       relevant to the marital estate or Jent’s personal property, the trial court did not

       abuse its discretion in failing to conclude that Cave intentionally destroyed

       evidence and imposing sanctions.


                IV. Motion to Correct Error/Motion for Relief from
                                    Judgment
[22]   Jent claims the trial court erred in denying his motion to correct errors/motion

       for relief from judgment because the court erroneously allocated to him

       property that was not part of the marital estate and failed to address Cave’s
                                               2
       allegedly perjured testimony.


[23]   Indiana Trial Rule 59 authorizes litigants to file a motion to correct error within

       thirty days of the issuance of a final judgment. A party may raise a variety of

       claims by motion to correct error, including newly discovered material

       evidence. Id. A trial court has broad discretion in ruling on a motion to correct




       2
        Jent styles his argument on this point as a failure by the trial court to hold a hearing on his motion, but he
       does not explain why a hearing was necessary. We instead treat his argument as a challenge to the merits of
       his combined motion.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020                   Page 11 of 14
       error, and we will reverse only for an abuse of that discretion. Walters v. Lima

       Elevator Co., Inc., 84 N.E.3d 1218 (Ind. Ct. App. 2017).


[24]   As for the motion for relief from judgment, Jent argued he was entitled to relief

       under Indiana Trial Rule 60(B)(3), which allows a trial court to set a aside a

       judgment for “fraud . . . misrepresentation, or other misconduct of an adverse

       party . . . .” The movant bears the burden of demonstrating that relief is

       necessary and just. Oberlander v. Handy, 913 N.E.2d 734 (Ind. Ct. App. 2009).

       We review the denial of a motion for relief from judgment for an abuse of

       discretion. Id.


[25]   In its order distributing marital assets, the trial court awarded Jent a cabin,

       valued at $6,000, that was part of the unsuccessful hunting preserve business in

       Ohio. Jent argues that at the time Cave petitioned to dissolve the marriage,

       ownership of the cabin had been transferred to someone else, and it was no

       longer part of the marital pot.


[26]   The record does not support Jent’s claim. Cave listed the cabin as a marital

       asset, claiming that it was initially owned by Tusks-N-Tines, LLC, the hunting

       preserve business that she and Jent had started with another couple in 2014. In

       January 2016, after Tusks-N-Tines failed, that company sold its assets,

       including its real estate and the cabin, to “TNT Outfitters of Ohio, LLC,” a

       company organized by Jent and Cave. Appellant’s App. Vol. 3, p. 111. Jent

       claims that a separate business entity subsequently purchased the land. While

       this claim may be true, the cabin was listed in the January 2016 sale agreement


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 12 of 14
       as “tangible personal property,” indicating that it is portable rather than a

       fixture on the land. Id. at 138. Jent has failed to demonstrate that the record

       shows the cabin was not a marital asset when Cave filed for dissolution of

       marriage in August 2016.


[27]   Next, Jent argues that he presented newly discovered evidence showing that

       Cave had committed perjury while discussing his guns. Motions to correct

       error based on newly discovered material evidence are viewed with disfavor.

       Scales v. Scales, 891 N.E.2d 1116 (Ind. Ct. App. 2008). During the evidentiary

       hearings, Cave testified that Jent had removed all of his guns from the

       Markleville property, and that she did not have any of them. In his motion to

       correct error, Jent attached a photograph Cave had posted on a social media

       site on February 14, 2019. The photograph depicted a room in her house,

       including a case containing several guns that Jent claims had belonged to him.

       Jent further argues the photograph proves Cave lied under oath when she said

       she had returned Jent’s guns to him. The trial court was not obligated to credit

       his statements about the guns over Cave’s statement that she had returned his

       guns to him. Jent has failed to establish an abuse of discretion as to either the

       motion to correct error or the motion for relief from judgment.


                                           V. Attorneys’ Fees
[28]   Jent argues the trial court should have granted his request for attorneys’ fees, in

       the amount of $40,000. In general, litigants pay their own attorneys’ fees.

       Indiana Code section 31-15-10-1 (1997) authorizes a trial court to order a party

       to pay another party’s litigation costs, including attorneys’ fees, in dissolution of
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 13 of 14
       marriage cases. A trial court has broad discretion in deciding whether to award

       fees. Eads v. Eads, 114 N.E.3d 868 (Ind. Ct. App. 2018).


[29]   Jent and Cave each asked the trial court to order the other side to pay their

       attorneys’ fees. The court did not address these requests in the dissolution

       order, effectively leaving each party responsible for its own fees. There is

       sufficient evidence to support the court’s determination. Although Cave’s

       earnings potential was superior to Jent’s during their marriage, her veterinary

       business lost money for several years prior to the filing of this case because she

       used the profits to help fund the unsuccessful hunting preserve business.

       Further, Cave’s business began to turn a profit after filing the dissolution action,

       but she also had to pay the mortgage and property taxes on the Markleville

       property and pay for maintaining the deer herd, without any contributions from

       Cave. Cave testified that he was in dire financial straits and had borrowed

       money from family to pay his attorneys, but he had also obtained a job earning

       $70,000 per year. Both sides spent a lot of money on attorneys’ fees in this

       long-running dispute. We conclude the trial court did not abuse its discretion

       by rejecting Jent’s request for attorneys’ fees.


                                                Conclusion
[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Affirmed.


       Kirsch, J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1411 | August 31, 2020   Page 14 of 14
