MEMORANDUM DECISION                                                            FILED
                                                                          Mar 07 2017, 9:21 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          CLERK
                                                                           Indiana Supreme Court
regarded as precedent or cited before any                                     Court of Appeals
                                                                                and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Renee M. Ortega                                         David P. Matsey
Merrillville, Indiana                                   Valparaiso, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Kelley,                                         March 7, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A04-1607-DR-1705
        v.                                              Appeal from the Lake Circuit
                                                        Court
Wendy Kelley,                                           The Honorable George C. Paras,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        45C01-1407-DR-672



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017               Page 1 of 10
[1]   Michael Kelley (Husband) appeals from the dissolution court’s order dissolving

      his marriage to Wendy Kelley (Wife). On appeal, Husband argues that the

      dissolution court abused its discretion in dividing the marital estate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On May 30, 2008—prior to the marriage—Wife received a distribution from

      her grandfather’s estate in the amount of $305,865.26. Wife used the money to

      purchase what would become the marital home. Although Husband did not

      contribute financially toward the purchase of the home and Husband and Wife

      were not yet married at the time of the purchase, both Wife’s and Husband’s

      names were included on the deed. Thereafter, on September 29, 2008,

      Husband and Wife were married. The parties subsequently had one child, a

      daughter who was born in August 2009.


[4]   Aside from the marital home, neither party brought any assets of substantial

      value into the marriage, nor did the parties accumulate anything of value

      thereafter. During the marriage, the parties took out a home equity line of

      credit, which was used for home improvements and other living expenses. At

      the time of final separation, the loan had a balance of $19,639.28.


[5]   On July 28, 2014, Wife filed a petition for dissolution of marriage. An agreed

      provisional order was approved on January 6, 2015, pursuant to which Wife

      was awarded sole physical and legal custody of the parties’ child and Husband


      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017   Page 2 of 10
      was awarded parenting time and ordered to pay child support in the amount of

      $51 per week. Husband was also ordered to return Wife’s jewelry in his

      possession. Husband, however, failed to pay child support and he did not

      return Wife’s jewelry as agreed, later testifying that he had thrown the jewelry

      into a lake instead.


[6]   At the final hearing on March 14, 2016, the parties submitted a partial

      settlement agreement resolving issues of child custody, parenting time, and

      child support.1 The agreement also provided that the parties were awarded any

      financial accounts in their individual names and any vehicles in their possession

      and that each party was to be responsible for any debt related to their respective

      vehicles and any other debts held in their individual names. Further, the parties

      were to divide their personal property “according to agreements between them”

      and any items not agreed upon were to be submitted at the final hearing.

      Appellant’s Appendix at 17. Thus, the only significant issues remaining for the

      dissolution court to resolve with respect to property division were the

      distribution of the marital home and the allocation of the debt owed on the

      home equity line of credit. At the conclusion of the hearing, the dissolution

      court took the matter under advisement.




      1
        They copy of the settlement agreement included in the Appellant’s Appendix is incomplete. Specifically,
      the page reflecting the parties’ agreement with respect to custody and parenting time is missing. It is
      apparent, however, that these issues were resolved by agreement.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017            Page 3 of 10
[7]   The dissolution court entered its final decree on June 27, 2016, in which it

      concluded that an unequal distribution of the marital estate was just and

      reasonable under the circumstances of this case. The dissolution court awarded

      the marital home to Wife and also allocated liability for the debt owed on the

      home equity line of credit to Wife. Father now appeals. Additional facts will

      be provided as necessary.


                                          Discussion & Decision


[8]   On appeal, Husband argues that the dissolution court abused its discretion in

      awarding the only marital asset of any significant value—the marital home—

      solely to Wife. As an initial matter, we note that the dissolution court in this

      case entered special findings of fact and conclusions thereon pursuant to Ind.

      Trial Rule 52(A). Accordingly, our standard of review is two-tiered: first, we

      determine whether the evidence supports the findings and, second, whether the

      findings support the judgment. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964

      N.E.2d 213, 216 (Ind. 2012). We view the evidence in the light most favorable

      to the judgment and defer to the court’s findings if they are supported by the

      evidence or any legitimate inferences flowing therefrom. Id. at 216-17. Legal

      conclusions, on the other hand, are reviewed de novo. Id. at 217.


[9]   The disposition of marital assets is within the dissolution court’s sound

      discretion, and we will reverse only for an abuse of that discretion. Eye v. Eye,

      849 N.E.2d 698, 701 (Ind. Ct. App. 2006). In so doing, we consider only the

      evidence most favorable to the dissolution court’s decision, without reweighing


      Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017   Page 4 of 10
       the evidence or assessing the credibility of witnesses. Id. A dissolution court

       abuses its discretion if its decision is clearly against the logic and effect of the

       facts and circumstances before the court, or if it has misinterpreted the law or

       disregards evidence of factors listed in the controlling statute. Id.


[10]   Pursuant to Ind. Code § 31-15-7-5, the dissolution court is required to divide the

       marital estate in a just and reasonable manner. An equal division is presumed

       just and reasonable, but a party may rebut this presumption by presenting

       evidence that an equitable division would not be just and reasonable, including

       evidence concerning the following factors:

               (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.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017   Page 5 of 10
               (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. A party challenging the dissolution court’s division of marital property must

       overcome a strong presumption that the dissolution court “‘considered and

       complied with the applicable statute, and that presumption is one of the

       strongest presumptions applicable to our consideration on appeal.’” McCord v.

       McCord, 852 N.E.2d 35, 43 (Ind. Ct. App. 2006) (quoting DeSalle v. Gentry, 818

       N.E.2d 40, 44 (Ind. Ct. App. 2004)), trans. denied. Accordingly, we will reverse

       a property distribution only if there is no rational basis for the award, and

       although the circumstances may have justified a different property distribution,

       we may not substitute our judgment for that of the dissolution court. Augspurger

       v. Hudson, 802 N.E.2d 503, 512 (Ind. Ct. App. 2004).


[11]   The dissolution court in this case made several findings relevant to the factors

       set forth in I.C. § 31-15-7-5. Specifically, the court found that Wife had

       received the funds used to purchase the marital residence prior to the marriage

       through gift or inheritance from her family, and that Husband had brought

       nothing of economic value into the marriage. The court further found that the

       value of the marital home was $312,500 and that the balance owed on the home

       equity line of credit was $19,639.28 at the time of final separation. The court

       further found that Husband had relocated to Florida, where he was working at

       Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017   Page 6 of 10
Hilton Resorts and making nine dollars per hour, or approximately $18,700 per

year.2 Wife was working full-time for her father’s business and earning

approximately $38,000 per year. The court also found that although Husband

had been employed since the final separation, he had made no child support

payments and no contributions toward the payment of property taxes, the home

equity loan, or maintenance of the marital home.3 In considering the impact of

these facts on the division of property, the court made the following findings:

         17. Wife’s contribution of effectually of all of [sic] the marital
         assets rebuts an equal division of property. Wife is responsible
         for the contribution of virtually all of the marital property. The
         only marital asset of any value is the Marital Home. It is
         undisputed that the exclusive source of this property was the
         funds provided to the Parties by Wife’s family. The extent that
         the marital property was acquired by Wife through gift from her
         family rebuts an equal division of property. Husband brought
         nothing of material value into the marriage and, in fact, without
         the gift of funds from Wife’s family to acquire the Marital Home,
         the Parties would not have been able to purchase such a home.
         This was not a long term marriage nor was it a marriage where
         the Parties, through joint or individual efforts, accumulated any
         assets during the marriage.




2
 We note that Husband testified he made an hourly wage plus commission, and that with commission, he
could make as much as $2,000 per week.
3
  Husband seems to take issue with the dissolution court’s finding that he made no payments toward marital
debts and obligations during the dissolution proceedings. Specifically, he notes that the provisional order did
not require him to make such payments. It should be noted, however, that the provisional order did not
allocate responsibility for these debts and obligations to Wife, either. Rather, the provisional order simply
did not address the issue.

Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017               Page 7 of 10
        18. The economic circumstances of the Parties at the time of
        dissolution also rebut an equal division of the marital estate. An
        equal division would give Husband approximately $150,000,
        presumably in liquid assets, and no debt, and Wife the
        uncertainty of relocating and finding new shelter for herself and
        the Parties’ daughter and the payment of the debt of $19,639.28.


        19. The conduct of the Parties during the marriage also rebuts an
        equal division of property. Husband took and failed to return
        Wife’s jewelry. Husband has not maintained regular and reliable
        employment while this case was pending and failed to materially
        contribute to marital debts and obligations during the provisional
        period in this case.


        20. Each Party’s earnings and earnings ability do not mitigate
        against and support an unequal division of property. Husband
        had employment provided through Wife’s Father until he was
        fired. He has had short term non-career employment until the
        present, where he claims he now has career opportunities with
        Hilton Resorts. Wife, in the meantime, was employed part-time
        with her father until the dissolution was filed and now works full
        time at her Father’s business.


        21. It will not be just and reasonable for Husband to be awarded
        50% or any substantial portion of the marital assets when he
        brought nothing of financial value into the marriage, when
        virtually all of the marital assets resulted from a generous gift
        from Wife’s family, when Husband contributed nothing of
        economic value to the marriage while married, and when Wife
        had to bear the full brunt of financially supporting herself and the
        parties’ minor daughter while this matter was pending.


Appellant’s Appendix at 30-31.




Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017   Page 8 of 10
[12]   Husband does not appear to dispute any of the dissolution court’s factual

       findings, but instead argues that the facts do not support the court’s decision to

       award the marital residence solely to Wife. In support of his argument, he

       relies solely on Swinney v. Swinney, 419 N.E.2d 996 (Ind. Ct. App. 1981), trans.

       denied. That case, however, is readily distinguishable from this one.


[13]   In Swinney, this court held that the dissolution court abused its discretion by

       awarding 97% of the marital estate to the wife where the bulk of the property at

       issue was acquired during the marriage and by way of gifts made by the wife’s

       father to the husband and wife jointly. Id. at 997. Because the property was

       given to the husband and wife jointly, they were on the same footing with

       respect to the acquisition of property by way of gift or inheritance. Id. at 998.

       This is unlike the situation presented here, where Wife alone acquired the funds

       used to purchase the marital home before the marriage. Husband and Wife

       certainly do not stand in parity when it comes to the acquisition of property

       either before the marriage or through gift or inheritance.


[14]   Swinney is distinguishable in a number of other ways as well. Perhaps most

       notably, in Swinney, this court noted that it appeared that the dissolution court

       “did not consider the family residence, which was primarily the result of gifts

       from wife’s father, to be a part of the ‘marital pot.’” Id. at 999. This is clearly

       not the case here, where the dissolution court expressly indicated that the home

       was a marital asset. Moreover, the marital estate in Swinney included several

       assets—two cars, a savings account valued at $1,010, a checking account valued

       at $60, household goods valued at $2,000, and the marital home valued at

       Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017   Page 9 of 10
       $40,000. Id. at 997.4 Nevertheless, the dissolution court awarded the husband

       only one vehicle valued at $1,300 and a few items having only sentimental

       value. Id. In other words, it would have been feasible for the dissolution court

       in Swinney to fashion a somewhat more equitable award without forcing a sale

       of the marital home the wife was sharing with the parties’ children. In this case,

       however, the marital home is the only asset of any significant value, and in

       order for it to be divided equally, a sale would be necessary, and the parties’

       child would lose the only home she had ever known. Additionally, unlike the

       husband in Swinney, Husband dissipated marital assets by disposing of Wife’s

       jewelry.


[15]   For all of these reasons, we do not find Swinney controlling. The dissolution

       court’s findings are supported by the evidence, and the findings support the

       judgment with respect to the division of property. We find no abuse of

       discretion in the dissolution court’s distribution of the marital estate.


[16]   Judgment affirmed.


[17]   Riley, J. and Crone, J., concur.




       4
        We note that the electronic version of Swinney appearing on Westlaw omits this list of assets. The list can
       be found in the version of the opinion appearing in the bound volume of the North Eastern Reporter.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1607-DR-1705 | March 7, 2017             Page 10 of 10
