MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be                            Nov 29 2018, 7:05 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Dylan A. Vigh                                           Alexandra M. Curlin
Law Offices of Dylan A. Vigh, LLC                       Curlin & Clay Law Association of
Indianapolis, Indiana                                   Attorneys
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Allen Turner,                                     November 29, 2018
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        18A-DR-796
        v.                                              Appeal from the Marion Superior
                                                        Court
Darla Jo Turner,                                        The Honorable Kimberly D.
Appellee-Petitioner.                                    Mattingly, Judge Pro Tempore
                                                        Trial Court Cause No.
                                                        49D07-1605-DR-15637



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018          Page 1 of 7
                                          Case Summary
[1]   After dissolving the marriage between David Allen Turner (“Husband”) and

      Darla Jo Turner (“Wife”), the trial court entered a decree in which it purported

      to equally divide the marital estate. Husband now appeals, arguing that the

      court abused its discretion by ordering an equal division of the marital estate.


[2]   We affirm.



                            Facts and Procedural History
[3]   Husband and Wife began cohabitating in 2004 and married seven years later in

      July 2011. They lived in a home Husband purchased in 1999. During the

      relationship, both Husband and Wife worked. Although Husband initially

      earned more, their earnings were comparable after Wife incurred student loans,

      furthered her education, and obtained a higher-paying job in 2009. Husband

      and Wife maintained separate bank accounts and credit cards. They each took

      on different expenses, with Husband paying for the mortgage and Wife paying

      for utilities and groceries. Husband and Wife never had children together.


[4]   In late April 2016—unbeknownst to Husband—Wife traded in a vehicle and

      obtained a loan for a new vehicle. Approximately one week later, Wife

      petitioned to dissolve the marriage. The trial court held a hearing on November

      30, 2017, after which it entered a dissolution decree, ordering that “[t]he assets

      and debts of this marriage shall be divided 50/50 and in accordance” with a list

      the court had prepared. App. Vol. 2 at 14. Among the listed assets were

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018   Page 2 of 7
      retirement accounts, including an account Husband acquired through a former

      employer that Husband had worked for during part of the marriage. Although

      the trial court stated that it was equally dividing the marital estate, the court

      ordered that Wife was “solely responsible for the entirety of her student

      loans/debt,” id. at 14, amounting to approximately $51,042. Not taking those

      loans into account, the trial court determined that the marital estate was valued

      at $108,746, and then awarded 50% of that value to Husband and 50% to Wife.


[5]   Husband now appeals.



                                Discussion and Decision
[6]   We will not disturb a decision dividing marital property unless the trial court

      has abused its discretion. Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002).

      The trial court abuses its discretion when its decision is clearly against the logic

      and effect of the facts and circumstances before it, including the reasonable

      inferences to be drawn therefrom. Taylor v. Taylor, 436 N.E.2d 56, 58 (Ind.

      1982). Moreover, where—as here—a party has made a timely written request

      for special findings, the court “shall find the facts specially and state its

      conclusions thereon.” Ind. Trial Rule 52(A). We conduct a two-tiered review

      of those findings, first determining “whether the evidence supports the findings

      and then whether [the] findings support the judgment.” K.I. ex rel. J.I. v. J.H.,

      903 N.E.2d 453, 457 (Ind. 2009). In conducting our review, we do not reweigh

      the evidence, Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002), and must give

      “due regard . . . to the opportunity of the trial court to judge the credibility of

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018   Page 3 of 7
      the witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment

      unless clearly erroneous.” Id. Findings are clearly erroneous when the record

      contains no facts to support them, either directly or by inference. Fischer v.

      Heymann, 12 N.E.3d 867, 870 (Ind. 2014). “A judgment is clearly erroneous

      when there is no evidence supporting the findings or the findings fail to support

      the judgment.” J.H., 903 N.E.2d at 457. A judgment is also clearly erroneous

      when the court “applies the wrong legal standard to properly found facts.” Id.


[7]   In entering a dissolution decree, the trial court “shall divide the property of the

      parties . . . in a just and reasonable manner.” Ind. Code § 31-15-7-4. Under

      Indiana’s “one pot” approach to the division of marital property, all property

      owned by the spouses is put into the “marital pot,” where the property is subject

      to division. See I.C. § 31-9-2-98(b) (defining property as “all the assets of either

      party or both parties”); see also Barton v. Barton, 47 N.E.3d 368, 378-79 (Ind. Ct.

      App. 2015), trans. denied. Thus, whether the property was “owned by either

      spouse before the marriage,” individually “acquired by either spouse” before

      the parties finally separated, or acquired through the spouses’ “joint efforts,”

      I.C. § 31-15-7-4, in a dissolution action, there is a single “marital pot” and

      everything the spouses own is potentially divisible, see id.; I.C. § 31-9-2-98(b); see

      also Falatovics v. Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014).


[8]   Once the trial court has identified property to be included in the “marital pot,”

      the trial court must evaluate how to “divide the property in a just and

      reasonable manner.” I.C. § 31-15-7-4(b). The trial court begins with the

      “presum[ption] that an equal division of the marital property . . . is just and

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018   Page 4 of 7
reasonable.” I.C. § 31-15-7-5. Nevertheless, the court is not obligated to

equally divide the marital property. See id. Rather, a party may rebut the

presumption by “present[ing] relevant evidence . . . that an equal division

would not be just and reasonable.” Id. Our legislature has articulated a non-

exhaustive list of factors that bear on the reasonableness of an equal division:


        (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 . . . .


        (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.


Id.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018   Page 5 of 7
[9]    Husband contends that he rebutted the statutory presumption, and that the trial

       court abused its discretion by equally dividing the marital property. He argues

       that the court “ignor[ed] evidence” that Husband “had acquired the marital

       residence, certain vehicles, and the majority of his Union 401(k) prior to the

       marriage,” and that he “was the primary contributor to the acquisition of this

       property.” Appellant’s Br. at 8. Husband also asserts that “he and Wife shared

       similar economic circumstances at the time of the disposition; Wife dissipated

       certain marital assets immediately before filing for dissolution; and, he and

       Wife had nearly identical earning capacities at the time of dissolution.” Id.


[10]   Yet, the trial court valued the marital estate at $108,746—and that calculation

       did not account for $51,042 in student loans that the court wholly allocated to

       Wife. The trial court stated that it was allocating this debt to Wife “[i]n

       accordance with case law on the subject” of student loans. App. Vol. 2 at 14.

       However, under the statutory framework, all marital property is subject to

       division, see I.C. 31-15-7-4, and “[m]arital property includes both assets and

       liabilities.” Birkhimer v. Birkhimer, 981 N.E.2d 111, 120 (Ind. Ct. App. 2012).

       Thus, student loans—just like other debts incurred before the marital pot

       closes—are marital property subject to division. See I.C. 31-15-7-4; see also

       Roberts v. Roberts, 670 N.E.2d 72, 77-78 (Ind. Ct. App. 1996) (observing that

       whereas “Indiana does not permit a degree to be included as marital property,”

       student loans are “properly considered as part of the marital estate”).


[11]   Ultimately, after the court equally distributed the $108,746 in value, Husband

       netted $54,373 and Wife—having been allocated $51,042 in student loans—

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018   Page 6 of 7
       effectively netted only $3,331. Husband now argues that he should have

       received more of the marital estate. Yet, the court’s decision already reflects a

       substantial deviation in his favor: more than 90% of the adjusted net value to

       Husband. We are unpersuaded by Husband’s contention that the court abused

       its broad discretion by failing to award him even more of the marital estate.


[12]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-796 | November 29, 2018   Page 7 of 7
