                                                                          FILED
                                                                      Jun 13 2017, 5:50 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT/                                  ATTORNEY FOR APPELLEE/
      CROSS-APPELLEE                                           CROSS-APPELLANT
      Robert J. Palmer                                         Gregory K. Blanford
      May Oberfell Lorber                                      The Blanford Law Office
      Mishawaka, Indiana                                       South Bend, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ralph Monty Layne, Jr.,                                  June 13, 2017
      Appellant/Cross-Appellee-Petitioner,                     Court of Appeals Case No.
                                                               71A04-1607-DR-1687
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      Sudie Mae Layne,                                         The Honorable Steven L.
      Appellee/Cross-Appellant-Respondent.                     Hostetler, Judge
                                                               Trial Court Cause No.
                                                               71D07-1401-DR-37



      Najam, Judge.


                                       Statement of the Case
[1]   Ralph Monty Layne, Jr. (“Husband”) appeals the trial court’s final decree,

      which ended his marriage to Sudie Mae Layne (“Wife”). Husband presents

      three issues for our review, which we consolidate and restate as one issue:



      Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017                Page 1 of 23
              1.       Whether the trial court abused its discretion when it
                       divided the marital estate.


      And Wife presents three issues on cross-appeal, which we consolidate and

      restate as:

              2.       Whether the trial court erred when it denied her motion
                       for partial summary judgment on the issue of the
                       enforceability of the parties’ premarital agreement.

              3.       Whether the trial court abused its discretion when it
                       excluded from the marital estate both the marital residence
                       and a John Deere all-terrain vehicle (“ATV”).


[2]   We affirm.


                                 Facts and Procedural History
[3]   In late 1997, Husband and Wife were engaged to be married, and, sometime

      before February 11, 1998, they began living together in a residence Husband

      owned. On February 11, 1998, the parties executed a premarital agreement

      whereby Husband would retain sole ownership of his residence in the event that

      Wife “vacate[d] the premises.” Appellee’s App. Vol. II at 7. Husband and

      Wife finally married in August 2005.


[4]   On January 24, 2014, Husband filed a petition for dissolution of the marriage.

      Following a hearing on May 16, 2016, the court entered a decree of dissolution

      and found and concluded in relevant part as follows:




      Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017   Page 2 of 23
        12. During their marriage Husband and Wife commingled some
        of their assets, shared responsibility for the payment of marital
        debt and did some rehabilitation and remodeling work on
        Husband’s real estate located at 23101 Roosevelt Road, South
        Bend, Indiana (the “Roosevelt Road Property”). . . .

        13. Beginning in 2008, the parties began experiencing financial
        difficulties. For some time thereafter the parties’ monthly
        obligations totaled approximately $8,000.00 a month, but with a
        restructuring of that debt Wife brought it down to approximately
        $5,000.00 a month. Husband’s sole income during that period,
        and continuing to now, is approximately $1,700.00 per month
        from disability.

        14. During the later years of the marriage, when the parties’
        income was less than their expenses, Wife repeatedly asked
        Husband for financial assistance in paying the bills, but such
        assistance was not sufficiently provided. At the same time, the
        parties’ assets were also being used to support Wife’s business
        that ultimately failed. Ultimately Wife filed bankruptcy (prior to
        the Petition Date).

        15. At some point prior to the Petition Date, Husband was
        named as a POD payee of certificates of deposit representing the
        funds of Husband’s elderly parents. The amount of those funds
        total approximately $302,000.00.

        16. When Husband’s father died in July of 2013, before the
        Petition Date, Husband inherited his parents’ home on Prairie
        Avenue in South Bend. Husband’s mother had died previously,
        on February 18, 2013.

        17. Shortly after his father’s death, Husband gave his daughter
        [from a previous relationship] roughly $202,000.00 from the
        amounts he received upon his father’s death. After his father’s
        death, Husband gave his son [from a previous relationship] the
        home on Prairie Avenue, as well as the contents thereof, that

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        Husband had inherited from his father prior to the Petition Date.
        The clearest evidence is that the transfer to Husband’s son did
        not conclude until after the Petition Date. Therefore, the Prairie
        Avenue Property is part of the marital estate.

        18. The home and contents that Husband gave to his son had a
        value of approximately $45,000.00. The evidence as to value was
        conflicting and incomplete. However, that figure was used in
        Wife’s Contentions and would seem to be a reasonable figure
        based on the evidence presented.

        19. Husband purchased a Gator all-terrain vehicle in March or
        April, 2014. He paid approximately $17,000.00 cash for the
        vehicle. Six months later he sold the vehicle to his son for
        $9,000.00. The Gator was acquired by Husband after the
        Petition Date and is not part of the Marital Estate.

        20. Prior to the Petition Date, Father gave to his daughter
        approximately $202,000.00 from the moneys received upon the
        death of Husband’s parents. However, Husband’s daughter right
        away transferred $20,000.000 of that amount back to Husband.
        The Court finds that the net transfer to Husband’s daughter was
        $182,000.000. Thereafter, Husband borrowed money from
        daughter during the pendency of this proceeding of at least
        $30,000.00.

                                                ***

        25. There was no evidence from which the Court can determine
        the value of the Roosevelt Road Property at the time the parties
        signed the “Prenuptial Agreement.”

                                                ***

        27. Husband’s father’s will makes no mention of a desire to pass
        on money to the Husband’s children.


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        28. Other than the insurance declarations referred to above,
        there was no evidence presented by either party as to the nature,
        extent and value of the personal property in the marital residence
        as of the date of final separation. The only evidence presented as
        to the value of the Roosevelt Road real estate was Husband’s
        testimony that it is now worth $350,000.00. As that was the only
        evidence presented as to value, the Court accepts that as the
        value of the Roosevelt Road Property as of the date of final
        separation. The mortgage balance as of the Petition Date was
        approximately $134,111.62.

        29. On the Petition Date the parties jointly owned a property
        located at 8622/8633 East Smith Drive, Syracuse, Indiana (the
        “Lake Property”). There was no evidence presented as [to] the
        value of the Lake Property. However, Husband testified that he
        believes that the value of the Lake Property is less than the
        amount owed. Wife’s Contentions would indicate that she
        believes that there is $31,117.00 in equity in the Lake Property.
        Husband’s Exhibit 9 indicates that the indebtedness owing the
        Fifth Third Bank secured by the Lake Property was $378,882.85
        as of the Petition Date. There was testimony by Wife that there
        were contents, such as furniture, missing from the Lake Property.
        Wife also acknowledged that she removed a stainless steel
        refrigerator from the Lake Property. There was no evidence
        presented as to the value of the Lake Property Contents, missing
        or otherwise.

        30. When Husband filed his petition for dissolution of marriage,
        there was approximately $100,000.00 in his bank account - the
        balance that remained after giving $202,000.00 to his daughter.

        31. Also as of the Petition Date, Husband also had under his
        control $10,830.00 that remained in his parents’ checking
        account following their deaths.




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        32. There was no evidence from which a value of any personal
        property can be determined, except for Husband’s opinion as to
        the values of the motor vehicles discussed below.

                                                ***

        34. Husband is solely liable for the [parties’] Unsecured Debts
        (which total $56,229.77) because of Wife’s bankruptcy. Some of
        the Unsecured Debts were incurred by Wife without Husband’s
        knowledge. However, the evidence as to which debts were
        incurred by Wife without Husband’s knowledge was imprecise,
        but considered as part of the Court’s conclusion discussed below
        that both parties dissipated assets.

        35. The parties own certain assets and owe certain liabilities,
        which should be equitably divided between them.

        ANALYSIS AND DISCUSSION

        A premarital agreement under Indiana law is “an agreement
        between prospective spouses that is executed in contemplation of
        marriage” and which “becomes effective upon marriage.” I.C.
        [§] 31-11-3-2. Indiana favors such agreements, as “promoting
        domestic happiness and adjusting property questions that
        otherwise would often be the source of litigation.” Boetsma v.
        Boetsma, 768 N.E.2d 1016 (Ind. Ct. App. 2002), (internal
        citations omitted). So long as the agreement is not
        unconscionable, and entered into freely, without fraud, duress or
        misrepresentation, the agreement will be liberally construed to
        give effect to the spouses’ intentions. Brackin v. Brackin, 894
        N.E.2d 206 (Ind. Ct. App. 2008).

        While the Agreement is not very artfully drafted, the parties’
        intentions can be discerned. First of all, they referred to the
        Agreement as a “prenuptial” agreement both in the title and the
        body of the agreement. That term has a generally recognized
        meaning. Second, Husband and Wife clearly agreed that the
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        Wife was not to have any interest whatsoever in the property
        located at 23101 Roosevelt Road (the “Roosevelt Road
        Property”), or any of the improvements thereon. The agreement
        is also clear that the parties intended that if they split up, the
        Wife would only receive such contents as Husband agrees that
        she should have.

        The Court finds that the Agreement was entered in
        contemplation of marriage. The parties were living together at
        the time. Husband had asked wife to marry him and had given
        wife a ring which Wife had accepted. During this time period,
        Wife told their friends that Husband and Wife were getting
        married.

        It certainly took the parties some years after the Agreement was
        signed to actually get married. But ultimately they did wed. The
        Court finds that the Agreement was entered into in
        contemplation of marriage. Further, there is no evidence of any
        fraud, duress or misrepresentation.

                                                ***

        The second major issue that has to be addressed is whether the
        funds received by Husband from his parents, and the Prairie
        Avenue property that he received from his parents’ estates after
        they died, should be included in the marital estate. Husband’s
        parents died before the Petition Date. The portion of the funds
        received by Husband upon his parents’ deaths that remained as
        of the Petition Date are marital assets. The portion transferred to
        Husband’s daughter pre-petition are not property of the marital
        estate. That portion is addressed by the “Dissipation
        Equalization Payment” described below.
        Similarly, the Prairie Avenue home, and the contents thereof,
        were received by Husband by operation of law prior to the date
        of separation. However, the transfer to Husband’s son did not
        occur until after the Petition Date. Therefore, the Prairie Avenue


Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017   Page 7 of 23
        Property and its contents are property of the marital estate subject
        to division.

        The third major issue that must be addressed is the respective
        allegations of each of the parties that the other dissipated the
        marital estate. The Court finds that both parties engaged in some
        dissipation of the marital estate. The parties were living beyond
        their means. Wife did attempt to reign in Husband’s spending.
        However, marital assets were also used by Wife to support her
        failing business. The Court finds that the mutual dissipation of
        assets by the parties offset each other and no adjustment to the
        division of the marital estate is made by virtue of that mutual
        dissipation. Both parties enjoyed the benefits of the excessive
        family lifestyle, and both would have benefitted if Wife’s business
        had succeeded. Husband was aware that marital assets were
        being used to purchase business real estate. Whatever dissipation
        occurred by both parties does not justify affecting the allocation
        and distribution of the marital estate.

        However, the above conclusion does not apply to Husband’s
        dissipation of the net $182,000.000 he transferred to his daughter
        a few months prior to the Petition Date. That dissipation
        requires an adjustment in the distribution/allocation of the
        marital estate because of the amount involved and the fact that it
        occurred so near to the Petition Date. In its division discussed
        below, the Court will require Husband to transfer one-half (1/2)
        of that amount to Wife (that payment is referred to as the
        “Dissipation Equalization Payment”).

                                                ***

        DIVISION OF ASSETS AND LIABILITIES

        1. The division of the marital estate is being governed by I.C. §
        31-15-7-4 and I.C. § 31-15-7-5. The Court having considered all
        of the provisions thereof, finds that the division of the marital
        estate set forth hereinafter which results in Wife receiving more

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        than 50% of the marital estate is fair and equitable to both
        parties. The presumption that a substantially equal division of
        the marital property between the parties is just and reasonable
        has been rebutted after having considered all the evidence and all
        of the factors set forth in I.C. § 31-15-7-5. The primary basis
        for that deviation from a 50-50-split is Husband’s significant
        dissipation of liquid assets a few months prior to the Petition
        Date. Except for the cash payment required by Husband to Wife
        described hereinbelow to address Husband’s dissipation, the
        division of the marital estate would be very nearly 50-50. In light
        of the debts Husband will be responsible for, Husband is
        receiving, in effect, approximately $21,465.39 less than Wife.
        However, even though there is no evidence as to the value of
        much of the personal property being received by each party,
        Husband is probably receiving slightly more of such personal
        property in the form of household goods. Therefore, the division
        is fairly even when the special factors of the Dissipation
        Equalization Payment and the Roosevelt Road Property (due to
        the Prenuptial Agreement) are excluded.

        2. The Court makes the findings as to the values of assets and
        liabilities of the marital estate of the marriage as set forth in the
        distribution/allocation provisions of this Order set forth below
        (paragraphs 3 through 8). The distribution/allocation provisions
        do not include the Roosevelt Road Property, because it is
        covered by the Prenuptial Agreement and not included in the
        marital estate for purposes of the distribution/allocation
        provisions of this Order. Similarly, the Lake Property and the
        indebtedness secured thereby are not addressed in the
        distribution/allocation provisions below, but were addressed
        previously in this Order.

        3. Wife should receive the full right, title, interest and possession
        to the following assets: [Wife’s 2004 GMC Envoy--$6,000;
        Household Goods and Miscellaneous Personal Property
        currently in Wife’s possession and control--unknown value; Cash


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        payment from Husband to Wife (Dissipation Equalization
        Payment)--$91,000.]

        Total Marital Asset Value to Wife $97,000.00

        4. Wife should assume and pay the following marital debts:
        [Loan on Wife’s Vehicle--amount unknown; One-half of any
        state and federal income taxes for 2012.]

        Total Marital Liabilities to be paid by Wife $0.00

        5. Net Marital Estate to Wife $97,000.00

        6. Husband should receive the full right, title, interest and
        possession to the following assets: [All personal property
        presently located at Roosevelt Road Property—unknown value;
        CD as of Petition Date--$100,936.00; Bank Account as of
        Petition Date--$10,830.00; 1997 Ford F250 and 2000 Ford
        Expedition--$6,000.00; Prairie Avenue Real Estate and Contents-
        -$45,000.00.]

        Total Marital Assets and Marital Asset Value to Husband
        $162,766.00

        7. Husband must assume and pay the following marital debts:
        [Mortgage on Roosevelt Road as of Petition Date--$134,111.62;
        One-half of any state and federal income taxes for 2012—
        unknown; “Unsecured Debts” Listed in Paragraph 33 of
        Findings (page 6) of this Order--$56,119.77; Cash Payment from
        Husband to Wife (Dissipation Equalization Payment)--$91,000;
        One-half of Pre-Petition state and federal income taxes for
        2012—unknown.]

        Total Liabilities to Husband $281,231.39

        8. Net Marital Estate to Husband $(118,465.39)


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        9. The division of the marital estate provided above warrants
        further explanation. First, the marital estate (at least as to assets
        pertaining to which there was evidence introduced) is essentially
        insolvent. However, there are some unusual circumstances that
        were considered. First, the Roosevelt Road Property is not being
        treated as a marital asset because of the Prenuptial Agreement.
        However, the indebtedness secured by that property is a marital
        liability. It is a line of credit drawn on by the parties during their
        marriage. Further, Husband is being ordered to pay the
        Dissipation Equalization Payment discussed above. Husband
        shall pay said Dissipation Equalization Payment to Wife within
        60 days following the date hereof. Wife is hereby awarded a
        judgment lien against the Roosevelt Road Property to secure that
        obligation.

        10. Husband should also receive the full right, title, interest and
        possession to the following assets upon which the parties have
        placed no value:

                 a. Any bank or other financial institution accounts
                 and the funds contained therein that are solely in
                 Husband’s name that have not been identified
                 hereinabove.

                 b. Any insurance on Husband’s life including all
                 beneficial interest therein and rights of ownership
                 thereto that have not been identified hereinabove and
                 upon which the parties have placed no value.

        11. Wife should also receive the full right, title, interest and
        possession to the following marital assets:

                 a. Any bank or other financial institution accounts
                 and the funds contained therein that are solely in
                 Wife’s name that have not been identified
                 hereinabove.


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                 b. Any insurance on Wife’s life including all
                 beneficial interest therein and rights of ownership
                 thereto that have not been identified hereinabove and
                 upon which the parties have placed no value.

                                                ***

        14. Post-Decree Spousal Maintenance: No post-decree spousal
        maintenance has been requested and none is being ordered. No
        portion of the pre-decree spousal maintenance shall be allocated
        to Wife or affect the division and payments provided for herein.
        Further, the parties evenly divided the proceeds from a pontoon
        boat during the pendency of this proceeding. Therefore, that
        boat and the proceeds thereof are not dealt with in this Order.

        15. Attorney Fees: Wife has requested that Husband be ordered
        to pay the majority of Wife’s attorney fees. Neither party has
        engaged in any misconduct or taken unreasonable positions with
        respect to this proceeding. Wife presented no evidence as to her
        income. Husband’s income is limited to disability payments.
        Pursuant to I.C. [§] 31-15-10-1, and taking into consideration the
        relative earnings, earning ability, economic circumstances, any
        misconduct of either or both parties that directly results in
        additional litigation expenses, and the available resources of both
        parties, the Court finds that neither party should pay the other’s
        attorney fees or expenses incurred in this case.


Appellant’s App. Vol. II at 14-27. This appeal ensued.




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                                     Discussion and Decision
                                             Standard of Review

[5]   In Trabucco v. Trabucco, 944 N.E.2d 544, 548-49 (Ind. Ct. App. 2011), trans.

      denied, we set out the applicable standard of review where, as here, a party

      requests that the trial court issue findings and conclusions.

              When findings and conclusions thereon are entered by the trial
              court pursuant to the request of any party to the action, we apply
              a two-tiered standard of review.

              First, we determine whether the evidence supports the findings
              and second, whether the findings support the judgment. In
              deference to the trial court’s proximity to the issues, we disturb
              the judgment only where there is no evidence supporting the
              findings or the findings fail to support the judgment. We do not
              reweigh the evidence, but consider only the evidence favorable to
              the trial court’s judgment. Challengers must establish that the
              trial court’s findings are clearly erroneous. Findings are clearly
              erroneous when a review of the record leaves us firmly convinced
              a mistake has been made. However, while we defer substantially
              to findings of fact, we do not do so to conclusions of law.
              Additionally, a judgment is clearly erroneous under Indiana Trial
              Rule 52 if it relies on an incorrect legal standard. We evaluate
              questions of law de novo and owe no deference to a trial court’s
              determination of such questions.


      Id. (quoting Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App. 2005),

      trans. denied) (internal citations omitted).




      Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017   Page 13 of 23
                                     Issue One: Division of Marital Estate

[6]   Husband contends that the trial court’s division of the marital estate was clearly

      erroneous for two reasons: (1) because the court “improperly clawed [the

      $182,000 in dissipated assets] back into the marital estate” and ordered him to

      pay Wife $91,000 as a “dissipation equalization payment”; and (2) because the

      court awarded Wife assets in excess of the net value of the marital estate.

      Appellant’s Br. at 9-10. We address each contention in turn.1


                                       Dissipation Equalization Payment

[7]   Husband asserts that the trial court erroneously included in the marital estate

      the $182,000 he had dissipated before the date of the parties’ final separation.

      Thus, Husband maintains that the dissipation equalization payment to Wife is

      clearly erroneous “because the dissipation of assets can only affect the

      distribution of assets existing at the time of final separation and cannot bring

      assets back into the marital estate if the dissipation occurred prior to

      separation.” Id. at 10. The trial court did not err.


[8]   Indiana Code Section 31-15-7-5 provides as follows:

                 The court shall presume that an equal division of the marital
                 property between the parties is just and reasonable. However,
                 this presumption may be rebutted by a party who presents
                 relevant evidence, including evidence concerning the following
                 factors, that an equal division would not be just and reasonable:




      1
          Husband does not challenge the trial court’s finding that he dissipated marital assets.


      Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017                      Page 14 of 23
              (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:
                    (A) a final division of property; and
                    (B) a final determination of the property rights of the
                    parties.


      (Emphasis added).


[9]   Here, the trial court did not claw back the dissipated assets but, rather, in its

      clearly written findings and conclusions explicitly excluded from the marital

      estate the $182,000 Husband gave to his daughter. Then, in distributing the

      marital estate, the court deviated from the presumptive equal division because

      of Husband’s dissipation of those significant assets “so near to the Petition

      Date.” Appellant’s App. Vol. II at 22. Accordingly, the court awarded to Wife

      marital assets from the estate that it valued at $97,000, which included $91,000


      Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017       Page 15 of 23
       as a dissipation equalization payment. Husband has not demonstrated error.

       See, e.g., Goodman v. Goodman, 754 N.E.2d 595, 600 (Ind. Ct. App. 2001)

       (holding trial court properly considered statutory factors, including husband’s

       dissipation of marital assets during the marriage, in awarding wife “nearly the

       entire marital estate”).


[10]   Still, citing this court’s opinion in Pitman v. Pitman, 721 N.E.2d 260 (Ind. Ct.

       App. 1999), Husband asserts that a trial court “may not compensate a party for

       pre-separation dissipation.” Husband maintains that, because his dissipation of

       assets occurred prior to the parties’ separation, the trial court was prohibited

       from compensating Wife for those assets. But Husband’s reliance on Pitman is

       misplaced.


[11]   In Pitman, just prior to a separation from his wife, husband sold valuable shares

       of stock in a closely-held family corporation to his sister and her husband for a

       total of $2 consideration. The trial court found, and this court agreed, that that

       sale constituted a dissipation of marital assets. Id. at 265. The trial court

       compensated wife for the dissipation by granting her a “money judgment”

       against husband. Id. at 266. On appeal, husband argued, and we agreed, that


               the judgment granted to Wife exceeds the value of the portion of
               marital property that was awarded to Wife.[] Therefore, Wife’s
               monetary judgment was not based upon an award of marital
               property but was instead an award to compensate Wife for the
               loss of the shares of S.D.P. stock. The monetary judgment
               disregards the principle that “a trial court may not compensate a
               party for pre-separation dissipation,” and the award of that judgment
               was an abuse of discretion. Sloss[ v. Sloss (In re Sloss)], 526 N.E.2d

       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017    Page 16 of 23
               [1036,] 1040[ (Ind. Ct. App. 1988)]; see also McManama[ v.
               McManama (In re McManama)], 272 Ind. [483,] 487, 399 N.E.2d
               [371,] 373[ (1980)].


       Id. at 266-67 (emphasis added).


[12]   However, the court explained further as follows:

               We are mindful of the result in this case. The trial court properly
               found that Husband transferred his shares of S.D.P. to his sister
               and brother-in-law with the purpose of preventing Wife from
               realizing any gain from the shares, and our holding that the trial
               court improperly granted a judgment to Wife appears to allow
               Husband to escape the consequences of his dissipation.
               However, rather than stipulate to the division of the parties’ real
               and personal property at the hearing, Wife could have sought to
               receive a larger portion of the marital estate in light of Husband's
               dissipation of the shares of stock. See, e.g., Sloss, 526 N.E.2d at 1039
               (affirming a trial court’s award to wife of net assets worth
               $32,575.96 and its award to husband of a net liability of $103,509
               due to husband’s dissipation); Planert v. Planert, 478 N.E.2d 1251,
               1253-1254 (Ind. Ct. App. 1985) (affirming a trial court’s division
               of property which granted the parties’ home, their personal
               property and their car to wife, but only granted the parties’
               cemetery plots to husband due to his dissipation of marital
               assets).


       Id. at 267 (emphasis added).


[13]   Here, Wife did not stipulate to the division of the marital estate, and the trial

       court properly awarded Wife marital assets from the estate that totaled $97,000

       in light of Husband’s dissipation of the $182,000. Thus, Pitman is inapposite

       here. Further, to the extent Husband cites Pitman as support for a general rule

       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017      Page 17 of 23
       that a trial court “may not compensate a party for pre-separation dissipation,”

       Husband is incorrect. It is well settled that, in determining whether a party has

       dissipated assets, a trial court may consider evidence of either pre- or post-

       separation dissipation. Balicki, 837 N.E.2d at 540. And this court has observed

       that dissipation that occurs “during the breakdown of the marriage, just prior to

       filing a petition or during the pendency of an action, may require heightened

       scrutiny.” Coyle v. Coyle (In re Coyle), 671 N.E.2d 938, 943 (Ind. Ct. App. 1996)

       (emphasis added).


[14]   In In re McManama, our Supreme Court held that a trial court may compensate

       a spouse for pre-separation dissipation of marital assets as long as such

       compensation comes from marital assets in which the parties have a vested

       present interest at dissolution and not, for instance, from a spouse’s future

       income.2 399 N.E.2d at 373. Here, at the time of dissolution, the marital estate

       included a CD worth over $100,000, which the trial court awarded to Husband.

       That asset, alone, was sufficient to cover the dissipation equalization payment

       to Wife. The trial court did not err when it divided the marital estate.


                                           Value of Marital Estate

[15]   Husband also contends that the trial court erred when it awarded Wife “assets

       in excess of the net value of the marital estate.” Appellant’s Br. at 12. It is well




       2
         A court may also provide compensation for pre-separation dissipation “by way of an award of either
       support or maintenance” where authorized by statute to do so. See In re McManama, 399 N.E.2d at 373.

       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017                    Page 18 of 23
       settled that a property division cannot exceed the value of the marital assets

       without being considered an improper form of maintenance and an abuse of

       discretion. Smith v. Smith, 938 N.E.2d 857, 861 (Ind. Ct. App. 2010). But this

       court has also held that there is “no authority for the position that a cash award

       constitutes an impermissible form of maintenance if that award exceeds the net

       value of the marital estate.” Wells v. Wells, 489 N.E.2d 972, 976 (Ind. Ct. App.

       1986) (emphasis added).


[16]   Here, the trial court valued the parties’ marital assets at more than $160,000.

       As such, the court’s award to Wife of $97,000 was within the marital assets.

       Husband appears to confuse marital assets with the marital estate, which

       includes both assets and liabilities. See Gard v. Gard, 825 N.E.2d 907, 910 (Ind.

       Ct. App. 2005). Husband’s contention that the trial court erred when it

       awarded Wife that amount simply because it exceeded the net value of the

       marital estate is without merit.3 See id.




       3
         Husband also asks us to “remand the case to the trial court for consideration of an award of appellate
       attorney’s fees and expenses.” Appellant’s Br. at 13. But, while Husband cites case law stating that a trial
       court has authority to order a party to pay a reasonable amount for the costs of the other party maintaining or
       defending legal proceedings in a dissolution action, he does not present cogent argument in support of such
       an award in this case. And Husband does not challenge the trial court’s finding that that “neither party
       should pay the other’s attorney fees or expenses incurred in this case.” Appellant’s App. Vol. II at 27.
       Accordingly, we reject Husband’s request for appellate attorney’s fees.

       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017                         Page 19 of 23
                                                     Cross-Appeal

                                      Issue Two: Premarital Agreement

[17]   Wife contends that the trial court erred when it denied her motion for partial

       summary judgment to determine the enforceability of the parties’ premarital

       agreement.4 In particular, in her summary judgment motion, Wife argued that

       the agreement was not a premarital agreement but was only a cohabitation

       agreement. We review the trial court’s grant or denial of a motion for summary

       judgment de novo, and we construe the designated evidence in the manner most

       favorable to the summary judgment nonmovant. Hughley v. State, 15 N.E.3d

       1000, 1003-04 (Ind. 2014). Further, “we will affirm the trial court’s ruling

       based on any theory supported by the record evidence.” Markey v. Estate of

       Markey, 38 N.E.3d 1003, 1006-07 (Ind. 2015).


[18]   Construction of the terms of a written contract generally is a pure question of

       law. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App.

       2017), trans. denied. The goal of contract interpretation is to determine the

       intent of the parties when they made the agreement. Id. This court must

       examine the plain language of the contract, read it in context and, whenever

       possible, construe it so as to render every word, phrase, and term meaningful,

       unambiguous, and harmonious with the whole. Id. If contract language is

       unambiguous, this court may not look to extrinsic evidence to expand, vary, or




       4
         Wife does not challenge the trial court’s findings and conclusions regarding the enforceability of the
       premarital agreement in the final decree.

       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017                          Page 20 of 23
       explain the instrument but must determine the parties’ intent from the four

       corners of the instrument. Id.


[19]   Wife contends that the premarital agreement is unambiguous and was not

       executed in contemplation of marriage but was executed in contemplation of

       the parties’ cohabitation. Accordingly, we determine the parties’ intent from

       the four corners of the agreement, see id., which provides as follows:


               Prenuptial agreement between Monty Layne and Sudie Hill

               As they are currently living together at 23l03 Roosevelt Road.
               Which solely belongs to Monty Layne. Let it be understood that
               Sudie Hill has no rights what so ever in any real estate at the
               mentioned address. She cannot and will not make any claims
               what so ever on the house, barn or any contents. That was all
               acquired before the relationship. In the event that a circumstance
               arrives that she shall vacate the premises. It will be entirely up to
               Monty Layne himself as to what she may take with her in the
               case if it should arise. She will be able to take her clothing and
               personal needs with her.

               With God as their witness Monty and Sudie have signed this
               agreement and it will hold up in any court of law. As they sign
               this agreement they pray that this prenuptial will never have to be
               used.


       Appellee’s App. Vol. II at 7 (emphases added).


[20]   We hold that the premarital agreement is exactly what it says it is. In addition

       to being titled “prenuptial agreement,” it states that the parties are “currently

       living together,” which negates Wife’s contention that the agreement was made

       in contemplation of the parties’ cohabitation. Id. In addition, the final sentence
       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017   Page 21 of 23
       again refers to the agreement as “this prenuptial.” Id. While perhaps unartfully

       drafted, the agreement is a premarital agreement, and the trial court did not err

       when it denied Wife’s motion for partial summary judgment on this issue.


                                Issue Three: Division of Marital Estate

[21]   Finally, Wife contends that the trial court abused its discretion when it

       excluded from the marital estate both the marital residence and Husband’s

       ATV. Wife maintains that, despite the premarital agreement, which excludes

       from the marital estate the marital residence, she has an interest in the residence

       because the parties “shared payment” of “a line of credit secured” by the

       residence. Appellee’s Br. at 18. In support of that contention, Wife cites Kemp

       v. Kemp, 485 N.E.2d 663, 667 (Ind. Ct. App. 1985), where we held that

       “property which is separate at its inception may lose its separate characteristic if

       it is not kept segregated. Specifically, money brought into a marriage as

       separate property becomes marital property when placed in a joint bank

       account with the other spouse.”


[22]   Wife does not explain how the use of the marital residence to secure the parties’

       joint debt constitutes commingling of the residence akin to the commingling of

       money in a joint bank account. We reject Wife’s contention on this issue. The

       trial court did not abuse its discretion when it excluded from the marital estate

       the marital residence.


[23]   Wife next points out, and Husband concedes, that the trial court erred when it

       found that Husband had purchased the ATV after the date of final separation


       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017   Page 22 of 23
       and excluded it from the marital estate on that basis. Husband had, in fact,

       purchased the ATV prior to the date of the parties’ final separation. However,

       Husband contends that any error was harmless because he also sold the ATV

       prior to the date of the parties’ final separation. We agree, and Wife does not

       direct us to any evidence that the proceeds from the sale were not included in

       the marital estate. Accordingly, to the extent the trial court erred when it

       excluded the ATV from the marital estate, any error was harmless.


                                                   Conclusion

[24]   The trial court did not err when it divided the marital estate. The court did not

       “claw back” into the marital estate the dissipated assets but excluded them from

       the marital estate. The trial court properly considered the dissipated assets

       when it divided the marital estate. The trial court did not err when it awarded

       Wife $97,000 in assets, including the dissipation equalization payment.

       Husband confuses marital assets with the net marital estate, which includes

       both assets and liabilities. The award to Wife does not exceed the value of the

       marital assets. Finally, the trial court did not err when it found that the parties’

       premarital agreement was valid and enforceable.


[25]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 71A04-1607-DR-1687 | June 13, 2017   Page 23 of 23
