MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jan 09 2020, 9:06 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Nicholas J. Hursh                                        Douglas E. Johnston
Shambaugh, Kast, Beck                                    Tourkow, Crell, Rosenblatt
& Williams, LLP                                          & Johnston, LLP
Fort Wayne, Indiana                                      Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roxann R. Behnke,                                        January 9, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DN-1627
        v.                                               Appeal from the Noble Superior
                                                         Court
James C. Behnke,                                         The Honorable Robert E. Kirsch,
Appellee-Respondent                                      III, Judge
                                                         Trial Court Cause No.
                                                         57D01-1710-DN-10



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020                 Page 1 of 10
[1]   Roxann Behnke (Wife) and James Behnke (Husband) dissolved their marriage.

      Wife appeals the trial court’s valuation and division of property, arguing that

      the trial court erred in both respects. Finding no error, we affirm.


                                                     Facts
[2]   Husband and Wife married in 2006. Sometime in 2013, Husband and Wife

      formed YNot Metal, Inc. (YNot), a closely-held corporation. The business

      specialized in fabricating, bending, welding, and cutting metal. Both Husband

      and Wife contributed funds from their retirement accounts to capitalize the

      business. Husband contributed $166,282.10 and owned 166.2821 shares, and

      Wife contributed $75,835.30 and owned 75.8353 shares.


[3]   On August 1, 2017, Wife filed her petition for dissolution of the marriage. The

      trial court conducted an August 9, 2018, final dissolution hearing, at which

      Husband and Wife submitted findings of fact and called witnesses to testify.

      Finally, on February 25, 2019, the trial court issued its findings of fact,

      conclusions of law, and decree of dissolution of marriage. The trial court found

      and held, in pertinent part, as follows:


                                     Asset Analysis – [YNot]

                                                   ***

              8. At the time of the filing of the divorce, the business had no
              intrinsic value other than a liquidation value.

              9. As part of the divorce, the hard assets of the business were
              appraised at a value of $102,835.00. . . . The business had certain


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 2 of 10
        outstanding indebtedness, which brought that value of the business
        down to $78,426.20.

        10. James Houlihan, a certified public accountant and licensed
        business evaluator, testified as to the value of the business, [YNot].

        11. Mr. Houlihan reviewed various tax matters supplied by both
        parties to him, as well as the tax returns for the business and
        consideration of other factors, including the fact that 75% of the
        customer base was one customer, Titan Metal.

        12. Based upon all of the information available to him, Mr.
        Houlihan found the business to be worth $78,217.00, representing
        the liquidation value of the assets, less liabilities. This amount was
        not taking into account any pre-marital assets of either party.

        13. Mr. Houlihan explained why there was no intrinsic value, in
        the form of enterprise or personal goodwill for this entity. In short,
        its lack of profitability prevented such a finding.

                                             ***

        18. Wife also took the position that there were substantial
        revenues during the year 2017 that should have resulted in the
        business actually being on the rise in profitability. However,
        evidence indicated that she communicated direct[ly] with
        [Husband] that the business was in trouble. The combination of
        her own words recognizing trouble, coupled with the default on
        the loan, all indicate that the liquidation analysis of the expert was
        based on real world facts and circumstances, as opposed to the
        position advanced by [W]ife.

        19. Wife had argued the business was worth $271,000.00 as
        reflected on her balance sheet.

        20. There was no evidence presented to support that valuation,
        and the Court declines to accept that as accurate.

        21. Accordingly, the Court finds that the net value of the business,
        [YNot], is $78,217.00 and is set over to Husband.



Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 3 of 10
                      Analysis of the Respective Inheritances

        22. Wife testified that [H]usband had inherited property from his
        parents, and that his interest in that property was roughly
        $25,000.00.

        23. The evidence established that, as of the date of the filing of the
        divorce, [H]usband’s father was still alive. Thus, any real estate
        which passed to [H]usband was not a countable asset in the
        marriage as of the date of filing.

        24. Accordingly, the Court is excluding any of [H]usband’s
        inheritance from the marital pot.

        25. Similarly, [W]ife had an inheritance of just over $8,000.00, and
        [H]usband’s position was that [W]ife should receive that
        inheritance without setoff. The combination of [H]usband’s
        inheritance not even being in existence at the time of the divorce,
        coupled with his position that [W]ife should be entitled to retain
        the entirety of her inheritance is eminently reasonable in light of
        the evidence presented.

        26. Accordingly, the Court does not factor any inheritance into the
        marital pot.

                                Analysis of Real Estate

        27. At the time of filing of the divorce, Wife owned real estate
        which she purchased in November[] 2000 for $85,000.00.

        28. For the tax year covering the date of filing, the tax assessor
        placed the value of the real estate at $94,400.00.

        29. Wife has taken the position that [H]usband had a prior piece of
        real estate that should be determined to be his separate property.
        Husband owned the real estate before the marriage and it was sold
        during the marriage.

        30. The evidence at trial, as presented by [W]ife, indicates that the
        real estate was sold well before the divorce action. The undisputed
        testimony was that the funds were consumed in the marital estate
        and do not separately still exist.

Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 4 of 10
              31. Accordingly, the court declines [W]ife’s offer to identify the
              sale of [H]usband’s pre-marital estate as a continuing asset in
              existence for purposes of division herein.


      Appealed Order p. 2-4 (emphases omitted).


[4]   Ultimately, the trial court ordered an equal 50/50 split of the marital estate. See

      id. at 9. On March 27, 2019, Wife filed a motion to correct errors, which the

      trial court denied on June 17, 2019, following a hearing. Wife now appeals.


                                   Discussion and Decision
                                      I. Standard of Review
[5]   Our standard of review for these types of cases is well established:


              When reviewing judgments with findings of fact and conclusions
              of law, Indiana’s appellate courts “shall not set aside the findings
              or judgment unless clearly erroneous, and due regard shall be
              given to the opportunity of the trial court to judge the credibility of
              the witnesses.” Ind. Trial Rule 52(A). Appellate judges are not to
              reweigh the evidence nor reassess witness credibility, and the
              evidence should be viewed most favorably to the judgment. See
              Ind. Dep’t of Child Servs. v. LaPorte Circuit Court (In re T.S.), 906
              N.E.2d 801, 804 (Ind. 2009); J.I. v. J.H. (In re K.I.), 903 N.E.2d
              453, 457 (Ind. 2009); Dunson v. Dunson, 769 N.E.2d 1120, 1123
              (Ind. 2002). “Findings are clearly erroneous only when the record
              contains no facts to support them either directly or by inference.”
              Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997) (quoting Estate
              of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind. 1994)).
              Appellate deference to the determinations of our trial court judges,
              especially in domestic relations matters, is warranted because of
              their unique, direct interactions with the parties face-to-face, often
              over an extended period of time. Thus enabled to assess credibility
              and character through both factual testimony and intuitive
              discernment, our trial judges are in a superior position to ascertain

      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 5 of 10
              information and apply common sense, particularly in the
              determination of the best interests of the involved children.


      Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “[I]t is not enough that the

      evidence might support some other conclusion, but it must positively require

      the conclusion contended for by appellant before there is a basis for reversal.”

      Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).


                                              II. Valuation
[6]   First, Wife argues that the trial court erred in its valuation of property.

      Specifically, Wife contends that the trial court improperly valued their metal

      business, YNot.


[7]   “[T]he trial court has broad discretion in ascertaining the value of property in a

      dissolution action[.]” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). “[W]e

      will not reverse the trial court unless the decision is clearly against the logic and

      effect of the facts and circumstances before it.” Id. The trial court does not err

      when its valuation of property is within the range of values supported by the

      evidence. Sanjari v. Sanjari, 755 N.E.2d 1186, 1191-92 (Ind. Ct. App. 2001).


[8]   From the record, we know that Husband called expert witness James Houlihan,

      a certified public accountant and licensed business evaluator, to testify as to

      YNot’s business value. Based on his experience and an independent evaluation

      of the financial documents, Houlihan concluded that YNot was worth

      $78,217.00. This sum included all liquidated assets in addition to all liabilities

      and outstanding debts. Wife disputed this figure, arguing that YNot should

      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 6 of 10
       have been valued at $271,000.00 given the inherent profitability and intrinsic

       value of the company.


[9]    It is apparent that the trial court gave substantial weight to the testimony of

       Husband’s expert witness, Houlihan. By contrast, the trial court deliberately did

       not give weight to Wife’s contentions about the value of YNot because she did

       not proffer witnesses—or any reliable evidence, for that matter—to refute

       Husband’s or Houlihan’s conclusion. See Alexander v. Alexander, 927 N.E.2d

       926, 935 (Ind. Ct. App. 2010) (holding that “[a] valuation submitted by one of

       the parties is competent evidence of the value of property in a dissolution action

       and may alone support the trial court’s determination in that regard[]”).

       Furthermore, the value calculated by Houlihan was at or near $78,426.20—the

       net value of YNot—and is within the range of values supported by the evidence.


[10]   We will not second-guess the trial court’s findings and conclusions unless there

       is clear error, and here, nothing leads us to believe that the trial court ruled

       erroneously. Thus, we hold that the trial court did not err in its valuation of

       YNot.


                                               III. Division
[11]   Next, Wife argues that the trial court erroneously divided the marital estate.

       Specifically, Wife contends that the trial court should have deviated from the

       equal division of property by including other assets. “The distribution of marital

       assets is committed to the sound discretion of the trial court.” Breeden v. Breeden,

       678 N.E.2d 423, 427 (Ind. Ct. App. 1997). “We will only reverse the trial

       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 7 of 10
       court’s decision when it is clearly against the logic and effect of the facts and

       circumstances before the court.” Id.


[12]   “The court shall presume that an equal division of marital property between the

       parties is just and reasonable, and may deviate from an equal division only

       when that presumption is rebutted.” Campbell v. Campbell, 993 N.E.2d 205, 212

       (Ind. Ct. App. 2013). Pursuant to Indiana Code section 31-15-7-5, one party can

       produce evidence of the following, among other things, to demonstrate 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 incoming
               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 the 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.


       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 8 of 10
[13]   First, Wife argues that the trial court should have ordered that her and her

       Husband’s respective inheritances would be included in the ultimate division of

       marital property. The trial court ordered, instead, that Wife and Husband

       would each keep their own respective inheritance money. The trial court

       reached this decision, in part, because Husband’s father, from whom Husband

       will receive his inheritance, was still alive at the time Wife filed for divorce.

       Further, there is manifest evidence that Husband wanted Wife to maintain her

       own inheritance because he felt that he was not entitled to any of that money. It

       was within the trial court’s discretion to make this decision, and we hold that

       the trial court did not err in determining that the parties would each retain their

       respective inheritances.


[14]   Next, Wife contends that the trial court erred by not including the value of

       Husband’s real estate that he “sold shortly before the dissolution action and

       final date of separation.” Appellant’s Br. p. 16. However, according to the trial

       court, “[t]he undisputed testimony was that [those] funds were consumed in the

       marital estate and do not separately still exist.” Appealed Order p. 4. Thus, in

       evaluating the evidence, the trial court decided that those profits from

       Husband’s sale of property did not constitute a separate asset that could be

       factored into the division of property. Once again, nothing in the record

       suggests that the trial court erred in making this determination.


[15]   Finally, Wife argues that the trial court should have considered her lower

       earning capacity and economic circumstances. This amounts to a request that

       we reweigh the evidence in Wife’s favor, which we may not do. Based on the

       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020   Page 9 of 10
       record and the trial court’s final decree, it is clear to us that the trial court

       carefully and prudently evaluated both parties’ assets while simultaneously

       considering Wife’s requests to deviate from the 50/50 split. Nevertheless, the

       trial court reached the conclusion that an even split would be in the best

       interests of Husband and Wife, and the record supports such a conclusion. As

       such, the trial court did not err in this respect.1


[16]   Thus, we find no error in the trial court’s division of property or determination

       that Wife presented no credible evidence to deviate from the presumption of an

       equal 50/50 division.


[17]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       1
         Additionally, Wife argues that the trial court did not consider evidence of Husband’s actions post-
       separation as they pertained to YNot and the sale of certain business property. However, this is nothing more
       than another attempt by Wife to have us revalue the YNot business entity, which, as we have already
       discussed, was a decision left to the sound discretion of the trial court. Accordingly, we dismiss this argument
       as redundant.

       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1627 | January 9, 2020                   Page 10 of 10
