FOR PUBLICATION
                                                         FILED
                                                      Jun 26 2012, 9:37 am


ATTORNEY FOR APPELLANT:                                       CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court

DAVID K. PAYNE
Michigan City, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GWEN E. MORGAL-HENRICH,                       )
                                              )
       Appellant-Respondent,                  )
                                              )
              vs.                             )      No. 46A05-1111-DR-645
                                              )
DAVID BRIAN HENRICH,                          )
                                              )
       Appellee-Petitioner.                   )


                     APPEAL FROM THE LAPORTE CIRCUIT COURT
                         The Honorable Thomas Alevizos, Judge
                             Cause No. 46C01-0908-DR-165



                                     June 26, 2012


                              OPINION - FOR PUBLICATION


BARNES, Judge
                                          Case Summary

        Gwen Morgal-Henrich (“Wife”) appeals the trial court’s distribution of property in

the dissolution of her marriage to David Henrich (“Husband”) and the trial court’s child

support order. We affirm in part, reverse in part, and remand.

                                                Issues

         Wife raises two issues, which we restate as:

                I.      whether the trial court properly divided the marital
                        estate; and

                II.     whether the trial court properly calculated Husband’s
                        weekly gross income for child support purposes.

                                                 Facts

        Husband and Wife married on March 26, 2000.1 Wife had adult children from a

previous marriage and one minor child, D.H., who was born in May 1993, and Husband

also had children from a previous marriage. Husband adopted D.H. in June 2001.

        Husband and Wife purchased a residence in February 2000 for $230,000. The

parties made a down payment of $105,000. $80,000 of the down payment was from the




1
 The trial court found that the parties were married on September 9, 2006, but Husband testified that the
parties married on March 26, 2000.


                                                   2
sale of Wife’s residence, and they obtained the remaining $25,000 from Wife’s father.2

Wife also had life insurance policies that she owned prior to the marriage. 3

        Husband is a member of an operating engineers union and does seasonal work.

His income varied greatly during the marriage depending on the availability of work.

Wife has a bachelor’s degree in nutrition and has been employed at various times making

$14 to $15 an hour. Both were unemployed at the time of the final hearing. Moreover,

the parties filed for bankruptcy in 2007.

        Wife and D.H. left the marital residence on July 31, 2009, and Husband filed a

petition for dissolution on August 10, 2009. The final hearing was held in April 2011 and

June 2011. The trial court then issued findings of fact and conclusions thereon.

        Regarding the division of marital property, the trial court found that the total

martial assets were valued at $153,485.57. The trial court awarded Husband: (1) the

marital residence, which was valued at $200,000 but was subject to $197,912.70 in

mortgages; (2) his truck along with any indebtedness; (3) $56,293.38 of his pension; (4)

personal property remaining at the residence; (5) the parties’ guns; (6) $3,300 he received

from the sale of a motorcycle; (7) livestock; (8) $2,500 he received from the sale of a

tractor; and (9) $56 in antique currency. The trial court awarded Wife: (1) $30,919.90 of

Husband’s pension; (2) her vehicle along with any indebtedness; (3) three life insurance

2
 Wife argues that they obtained the remaining $25,000 from her father, while Husband testified that he
provided the other $20,000. For purposes of this appeal, we will assume that Wife provided the
additional funds.
3
  In her brief, Wife argues that she had the three policies before her marriage to Husband. However, her
testimony at the hearing seems to indicate that one of the policies was purchased during the marriage.
See Tr. p. 165.


                                                   3
policies with a total cash value of $30,681.74; and (4) her Ameriprise investment

account. The parties were ordered to pay an American Express judgment equally and pay

their own attorney fees.

       Regarding child custody and child support, the trial court found that Wife had sole

custody of D.H. during the proceedings and that D.H. was emancipated as of the date of

the final hearing, June 7, 2011. The trial court imputed a weekly gross income of $290

per week to Wife. The trial court noted that Husband had been unemployed during the

majority of the dissolution proceedings and found that his weekly gross income was $390

per week, which was based on his unemployment benefits. The trial court ordered that

Husband pay $65 per week in child support from the date of filing to the date of the final

hearing for a total of $6,240 in child support. The trial court noted that no child support

had been paid during the pendency and that there was an arrearage. Wife now appeals.

                                         Analysis

       Initially, we note that Husband did not submit an appellee’s brief in this case.

When the appellee has failed to submit an answer brief, we need not undertake the burden

of developing an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang, 848

N.E.2d 1065, 1068 (Ind. 2006).        We will reverse the trial court’s judgment if the

appellant’s brief presents a case of prima facie error. Id. Prima facie error in this context

is defined as, “at first sight, on first appearance, or on the face of it.” Id. Where an

appellant is unable to meet this burden, we will affirm. Id.

       It appears that the trial court entered sua sponte findings of fact and conclusions

thereon. Sua sponte findings control only as to the issues they cover, and a general

                                             4
judgment will control as to the issues upon which there are no findings. Yanoff v.

Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). We will affirm a general judgment entered

with findings if it can be sustained on any legal theory supported by the evidence. Id.

When a court has made special findings of fact, we review sufficiency of the evidence

using a two-step process. Id. First, we must determine whether the evidence supports the

trial court’s findings of fact. Id. Second, we must determine whether those findings of

fact support the trial court’s conclusions of law. Id.

       Findings will only be set aside if they are clearly erroneous. Id. “Findings are

clearly erroneous only when the record contains no facts to support them either directly

or by inference.” Id. A judgment is clearly erroneous if it applies the wrong legal

standard to properly found facts. Id. In order to determine that a finding or conclusion is

clearly erroneous, an appellate court’s review of the evidence must leave it with the firm

conviction that a mistake has been made. Id.

                              I. Division of Marital Property

       Wife argues that the trial court abused its discretion when it divided the marital

estate. “This case turns on whether the trial court’s division of the marital property was

just and reasonable.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002). “Although

this is in some sense an issue of law, it is highly fact sensitive and is subject to an abuse

of discretion standard.” Id. We will not weigh evidence, but we will consider the

evidence in a light most favorable to the judgment. Id.




                                              5
      In an action for dissolution of marriage, the trial court is required to divide the

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

Code Section 31-15-7-5 provides:

             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)    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.


                                            6
A party seeking to rebut the presumption of equal division of marital property bears the

burden of proof in doing so. Beckley v. Beckley, 822 N.E.2d 158, 163 (Ind. 2005); I.C. §

31-15-7-5.

       According to Wife, the trial court abused its discretion when it failed to deviate

from the presumptive equal division of marital assets. Wife argues that she brought

significant assets into the marriage, which should have favored an unequal division in her

favor. Wife specifically argues that she contributed a $105,000 down payment on their

house and that she brought the life insurance policies into the marriage. Wife also argues

that she contributed to the marriage through part-time work and “homemaking duties,”

that Husband has a greater earning ability than she does, and that Husband sold marital

assets for less than the market value.

       The evidence presented at the final hearing demonstrated that Husband and Wife

purchased a residence for $230,000 and that the parties made a down payment of

$105,000. $80,000 of the down payment was from the sale of Wife’s residence, and the

remaining $25,000 was from Wife’s father. Despite the substantial down payment, at the

time of the final hearing, the residence was valued at $200,000, but it was subject to

almost $198,000 in mortgages. The equity in the marital residence provided by Wife is

now minimal due to additional mortgages on the property. Wife also had life insurance

policies that she owned prior to the marriage.       However, Wife admitted that she

continued to make payments on the policies during the marriage.

       As for the earning ability of the parties, Husband is a member of an operating

engineers union, does seasonal work, and has an income that varies greatly depending on

                                            7
the availability of work.      Wife has a bachelor’s degree in nutrition and has been

employed at various times making $14 to $15 an hour. Both were unemployed at the

time of the final hearing. Moreover, the parties filed for bankruptcy in 2007. As for

Husband’s alleged dissipation of assets, Wife argues that he sold assets, specifically a

tractor and a motorcycle, for below market value. Husband testified that he needed cash

to pay bills and that he found buyers for the items that would pay cash. There is no

evidence in the record as to the actual market value of the items.

       Our supreme court has held that a “trial court’s disposition is to be considered as a

whole, not item by item.” Fobar, 771 N.E.2d at 59.

               In crafting a just and reasonable property distribution, a trial
               court is required to balance a number of different
               considerations in arriving at an ultimate disposition. The
               court may allocate some items of property or debt to one
               spouse because of its disposition of other items. Similarly,
               the factors identified by the statute as permitting an unequal
               division in favor of one party or the other may cut in different
               directions. As a result, if the appellate court views any one of
               these in isolation and apart from the total mix, it may upset
               the balance ultimately struck by the trial court.

Id. at 60.   In Fobar, our supreme court determined that, “[a]lthough several of the

couple’s assets were brought to the marriage, there was no requirement that any be set off

for one spouse, and no requirement that the overall pot be unequally divided.” Id.

Rather, the court concluded that “the trial court was within its discretion in dividing the

property 50-50, and was not required to alter its virtually equal division of the marital

property to reflect [the wife’s] interest in the inherited . . . property.” Id.




                                                8
       Similarly, here, we cannot view Wife’s contribution to the marital assets in

isolation.   Wife’s premarital assets were used to purchase marital assets, and those

marital assets are now subject to substantial mortgages. Further, neither Husband nor

Wife has had a substantial consistent income, and we cannot say that Husband’s sale of

the tractor and motorcycle required the trial court to deviate from the equal division

presumption. Given all of the circumstances here, we cannot conclude that the trial court

abused its discretion by applying the equal division presumption. As in Fobar, the trial

court was not required to alter its equal division of the marital property to reflect Wife’s

premarital assets.

                                    II. Child Support

       Next, Wife argues that the trial court erred when it calculated Husband’s weekly

gross income for child support purposes. “A trial court’s calculation of child support is

presumptively valid.” Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008). A trial

court’s decision regarding child support will be upheld unless the trial court has abused

its discretion. Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans.

denied. A trial court abuses its discretion when its decision is clearly against the logic

and the effect of the facts and circumstances before the court or if the court has

misinterpreted the law. Id.

       The circumstances of this case are unusual in that the child support calculation

relates only to the child support owed from the date the petition for dissolution was filed

to the date of the final hearing, when D.H. was emancipated. Thus, the child support

calculation is solely a retroactive calculation, and Husband’s income for that time period

                                             9
is known. Wife argues that the trial court improperly calculated Husband’s weekly gross

income in making its child support calculation.

         The Indiana Child Support Guidelines define weekly gross income and provide:

               For purposes of these Guidelines, “weekly gross income” is
               defined as actual Weekly Gross Income of the parent if
               employed to full capacity, potential income if unemployed or
               underemployed, and imputed income based upon “in-kind”
               benefits. Weekly Gross Income of each parent includes
               income from any source, except as excluded below, and
               includes, but is not limited to . . . unemployment insurance
               benefits . . . .

Ind. Child Support Guideline 3 (emphasis added).

         In 2008, Husband earned $58,160. In 2009, he earned $15,490 plus $16,000 in

unemployment benefits. In 2010, he earned $89,608 plus $3,000 in unemployment

benefits. At the time of the final hearings in April and June 2011, Husband had been

receiving unemployment benefits of $390 per week since November 2010. Husband

proposed a weekly gross income of $390 in his child support worksheet, while Wife

proposed a weekly gross income of $1,723 (for an annual income of approximately

$89,600) in her child support worksheet.

         The trial court found Husband “has been unemployed throughout the majority of

the pendency of this action. He earned $390 per week in unemployment benefits.” App.

p. 99.     We acknowledge that Husband had been unemployed since November 2010.

However, he earned substantially more income than merely unemployment benefits from

August 2009 through June 2011, the time period at issue here. Although Husband’s

income fluctuates seasonally, Husband’s actual income during this time period is easily


                                            10
ascertainable.   The use of $390 per week as his weekly gross income results in a

substantial reduction of Husband’s child support obligation, while the use of $1,723 as

his weekly gross income, as advocated by Wife, would result in a substantially inflated

child support obligation.

       Because Husband’s actual income during the relevant time period is known, we

conclude that the trial court abused its discretion by using $390 per week as Husband’s

weekly gross income. We reverse and remand for the trial court to recalculate Husband’s

child support arrearage.      On remand, given Husband’s fluctuating income, we

recommend that the trial court use an income averaging calculation to determine

Husband’s weekly gross income. See, e.g., Trabucco v. Trabucco, 944 N.E.2d 544, 552-

53 (Ind. Ct. App. 2011) (“In light of Husband’s self-employment, the significant

fluctuations in his income over the past several years, and his failure to adequately

document his actual income at the time of the final hearing, the trial court’s decision to

use an income averaging approach to calculate Husband’s weekly gross income for child

support purposes was not clear error.”), trans. denied.

                                        Conclusion

       The trial court properly divided the marital assets, but the trial court abused its

discretion when it calculated the child support owed by Husband. We affirm in part,

reverse in part, and remand for a recalculation of Husband’s child support.

       Affirmed in part, reversed in part, and remanded.

FRIEDLANDER, J., and MAY, J., concur.



                                            11
