MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 19 2019, 9:48 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Brian M. Pierce                                         Julie-Marie Brown
Muncie, Indiana                                         Miller, Burry & Brown, P.C.
                                                        Decatur, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

David Brown,                                            December 19, 2019
Appellant,                                              Court of Appeals Case No.
                                                        19A-DN-1494
        v.                                              Appeal from the Jay Superior
                                                        Court
Kimberly Brown,                                         The Honorable Kimberly S.
Appellee.                                               Dowling, Special Judge
                                                        Trial Court Cause No.
                                                        38D01-1712-DN-96



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019              Page 1 of 9
[1]   David Brown (“Husband”) appeals the trial court’s distribution of the marital

      estate and attorney fee award. Kimberly Brown (“Wife”) requests appellate

      attorney fees. We affirm the order of the trial court and deny Wife’s request for

      appellate attorney fees.


                                        Facts and Procedural History

[2]   Husband and Wife became romantically involved in December 2006 and began

      living together in August 2007 at Husband’s house on 2nd Street in Portland,

      Indiana. 1 Wife bought a house and moved out in 2012. The parties purchased

      a residence on 450 South in November 2015. Husband began living with Wife

      at her house in January 2016. Husband and Wife were married in February

      2016, and they moved into the house on 450 South in the summer of 2016.

      According to Wife, she and Husband had “an on and off relationship” since

      2006 and the relationship spanned twelve years. Transcript Volume 2 at 8.


[3]   In December 2017, Wife filed for divorce. The chronological case summary

      shows that Wife filed a motion for authorization to have real estate appraised

      and that she later filed a motion to compel compliance which the court granted.

      The court heard evidence in November 2018 and April 2019. Wife presented,

      as Petitioner’s Exhibit No. 7, a summary of the marital assets and debts

      including the parties’ bank accounts, retirement accounts, real property,

      vehicles, personal property, and debts. In addition to appraisals of the real



      1
        At that point, the house on 2nd Street was titled in the name of Husband’s father, but it was later conveyed
      to Husband.

      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019                  Page 2 of 9
      properties, Wife presented exhibits itemizing the parties’ personal property

      including their firearms, tools, furniture, appliances, vehicles, motorcycles,

      lawnmower, and golf carts. She testified that most of the marital property was

      acquired by the parties since 2006, she contributed to mortgage payments for

      the house on 450 South which consisted of forty acres, the house was titled in

      both parties’ names, and they made improvements including remodeling a

      bathroom and installing new flooring, siding, roofing, windows, faucets, and

      appliances. She testified that she contributed financially to the house on 2nd

      Street including a back-tax payment, the house was now a rental, and Husband

      received the rental income.


[4]   Wife testified in detail regarding the personal property and vehicles in her

      possession and Husband’s possession. She indicated a 1973 Corvette was in

      Husband’s possession, it was not appraised at the time of the appraisals because

      it was not at the house, and Husband was having it restored in Marion. She

      believed the Corvette was worth $5,000 because Husband “said that a year ago

      it was probably worth Thirty-Five Thousand. He said it might be worth

      Twenty Thousand now,” and testified “[s]o I just said . . . ($5,000) just to,

      because I didn’t know for sure, but just Five Thousand.” Id. at 25-26. She

      believed Husband had retirement accounts which he did not disclose to her.

      She testified regarding her motion to compel and that Husband provided very

      little information, did not answer all the discovery questions, and did not

      provide requested documentation. She testified that she earned about $400 a

      week, that Husband did not provide information regarding his earnings, and


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 3 of 9
      that, at his last employment before the parties separated, his checks were

      usually around $1,000 to $1,200 a week. She indicated that, although Husband

      had higher earnings, she contributed to the household expenses both before and

      after they were married. She testified that Husband broke her cell phone and

      the cost to replace it, and that Husband never returned equipment related to

      television service.


[5]   On May 30, 2019, the court issued an Order of Property Distribution which

      included findings regarding the parties’ real property, vehicles, personal

      property, retirement accounts, and debts. The court awarded the real properties

      to Husband and distributed the personal property, found that its division was an

      equal division and that the parties lived together on and off for several years

      before marrying, and ordered that Husband pay Wife $66,098, that the parties

      equally split the costs of the appraisals, and that Husband pay Wife $910.59 for

      destroying her cell phone and not returning equipment. The court also ordered

      Husband to pay $8,000 toward Wife’s attorney fees.

                                                  Discussion

                                                        I.

[6]   Husband claims the trial court erred in valuing and distributing the marital

      property. In particular, he argues “the numbers don’t ‘add up’ to an equal

      distribution of assets or debts,” the values of the Corvette and gun collection are

      unresolved, and the court should have considered the short duration of the

      marriage. Appellant’s Brief at 11. Wife maintains the exhibits and testimony

      support the court’s valuations and distribution.
      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 4 of 9
[7]   The Indiana Supreme Court has expressed a “preference for granting latitude

      and deference to our trial judges in family law matters.” In re Marriage of

      Richardson, 622 N.E.2d 178, 178 (Ind. 1993). When a trial court has made

      findings of fact, we determine whether the evidence supports the findings and

      whether the findings support the conclusions thereon. Yanoff v. Muncy, 688

      N.E.2d 1259, 1262 (Ind. 1997). Findings will be set aside if they are clearly

      erroneous, which occurs when the record contains no facts to support them

      directly or by inference. Id.


[8]   The division of marital property is within the sound discretion of the trial court.

      Love v. Love, 10 N.E.3d 1005, 1012 (Ind. Ct. App. 2014). We consider only the

      evidence most favorable to the court’s disposition. Id. Although the facts and

      reasonable inferences might allow for a different conclusion, we will not

      substitute our judgment for that of the trial court. Id. The court must divide the

      marital estate in a just and reasonable manner, and an equal division is

      presumed just and reasonable. McGrath v. McGrath, 948 N.E.2d 1185, 1187-

      1188 (Ind. Ct. App. 2011) (citing Ind. Code § 31-15-7-5). The presumption may

      be rebutted by evidence of certain factors including the contribution of each

      spouse to the acquisition; the extent to which the property was acquired before

      the marriage or through inheritance or gift; the economic circumstances of each

      spouse at the time of the disposition; the conduct of the parties during the

      marriage; and the earnings or earning ability of the parties. Ind. Code § 31-15-

      7-5. The party challenging the court’s division must overcome a strong

      presumption that it considered and complied with the applicable statute.

      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 5 of 9
      McGrath, 948 N.E.2d at 1188. Marital property includes property owned by

      either spouse prior to the marriage, acquired after the marriage and prior to

      final separation, or acquired by their joint efforts. Id. The court’s disposition of

      the marital estate is to be considered as a whole, not item by item. Id.


[9]   The trial court heard testimony regarding the length of the parties’ relationship,

      the two parcels of real estate, when the properties were acquired, the various

      improvements made to the properties, the parties’ contributions to the

      household expenses, and the value of the marital assets and debts including the

      real properties, vehicles, bank and retirement accounts, tools, furniture,

      firearms, other personal property, and debts. Petitioner’s Exhibit No. 7

      included a summary of the marital assets and debts with assigned values for

      each item which stated the parties’ total assets were $475,962.87, their total

      debts were $299,959.55, and the net marital estate was $176,003.32, and which,

      after assigning the real properties to Husband and dividing the other property,

      recommended that Husband make an equalization to Wife of $65,351.27. The

      court distributed the real properties to Husband and divided the vehicles and

      personal property between the parties. The court’s order provided that it

      utilized the values listed on Petitioner’s Exhibit No. 7, found the values used

      were reasonable, and ordered Husband to pay Wife $66,098. As for the 1973

      Corvette, Wife indicated that it was not appraised at the time of the appraisals

      because it was not at the house, that Husband was having it restored, and that

      Husband had stated it might be worth $20,000. The court’s order specifically

      found that the value assigned to the Corvette of $5,000 was reasonable. As for


      Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 6 of 9
       the gun collection, Petitioner’s Exhibit No. 7 assigned the firearms, valued at

       $5,930, to Husband. Wife also submitted Petitioner’s Exhibit No. 3 which

       listed eight firearms with estimated values for each firearm, listed a Ruger

       revolver with an estimated value of $500 to $600, and provided a total

       approximate value for the firearms of $5,540 to $6,320. While Petitioner’s

       Exhibit No. 7 assigned all of the firearms to Husband, Wife testified that the

       Ruger firearm was her father’s and that she desired to keep it. The court

       ordered that Wife have the items in her possession including the Ruger firearm.

       The valuations utilized by the court were within the range of values presented

       by the evidence. Based upon the record, we cannot say that the trial court

       abused its discretion in distributing the marital property.


                                                        II.


[10]   Husband further argues the trial court should not have ordered him to pay

       attorney fees and states that “it is true that [he] was untimely and difficult in his

       discovery responses” but that “based on the results achieved, [Wife] wasn’t

       prejudiced at all.” Appellant’s Brief at 15. Wife maintains that Husband’s

       conduct throughout the proceedings, including forcing her to obtain an order to

       comply with discovery requests, supports the attorney fee award. She also

       requests appellate attorney fees.


[11]   In dissolution proceedings, the trial court may order a party to pay a reasonable

       amount for the other’s attorney fees. Luttrell v. Luttrell, 994 N.E.2d 298, 305

       (Ind. Ct. App. 2013) (citing Ind. Code § 31-15-10-1), trans. denied. The trial


       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 7 of 9
       court has broad discretion in awarding attorney fees. Id. The court may

       consider the resources of the parties, their relative earning abilities, and other

       factors which bear on the reasonableness of the award. Id. The court may also

       consider any misconduct that causes a party to incur additional fees. See Bessolo

       v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App. 2012), trans. denied.


[12]   The trial court ordered Husband to pay $8,000 toward Wife’s attorney fees. It

       found that Husband created issues with discovery by providing answers late, by

       not providing detailed information on bank accounts or retirement funds, and

       by continuing hearings, and that his behavior caused Wife to incur additional

       attorney fees. It found that Wife’s attorney filed an appropriate fee affidavit

       with itemized billing, Wife provided her income, and Wife requested

       Husband’s income in discovery but he refused to provide it. We cannot say the

       trial court abused its discretion in awarding attorney fees.


[13]   As for appellate attorney fees, this Court is authorized to assess damages if an

       appeal “is frivolous or in bad faith,” and such damages “shall be in the Court’s

       discretion and may include attorneys’ fees.” Ind. Appellate Rule 66(E). A

       strong showing is required to justify an award of appellate damages, and the

       sanction is not imposed to punish mere lack of merit, but something more

       egregious. Bessolo, 966 N.E.2d at 734. To prevail on her request, Wife must

       show that Husband’s arguments on appeal are “utterly devoid of all

       plausibility.” See id. While we conclude that the trial court did not abuse its

       discretion distributing the marital estate or awarding attorney fees, we cannot



       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 8 of 9
       say that Husband’s arguments on appeal are “utterly devoid of all plausibility”

       or that an award of appellate attorney fees is appropriate.


[14]   We affirm the judgment of the trial court and deny Wife’s request for appellate

       attorney fees.


[15]   Affirmed.


[16]   Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DN-1494 | December 19, 2019   Page 9 of 9
