Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any 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:

CASEY CLOYD                                        MARK PEDEN
Indianapolis, Indiana                              Martinsville, Indiana

                                                                           Feb 28 2013, 9:23 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

F.E.,                                              )
                                                   )
        Appellant-Defendant,                       )
                                                   )
               vs.                                 )       No. 55A01-1207-DR-311
                                                   )
J.E.,                                              )
                                                   )
        Appellee-Plaintiff.                        )


                     APPEAL FROM THE MORGAN SUPERIOR COURT
                            The Honorable Thomas Gray, Judge
                             Cause No. 55C01-1104-DR-755


                                       February 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

       F.E. (“Father”) appeals the trial court’s decree and property disposition order in

the dissolution of his marriage to J.E. (“Mother”).

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

                                          ISSUES

       1.     Whether the trial court erred in not making a written finding to
              support its restriction of Father’s visitation time;

       2.     Whether the trial court erred in ordering an unequal division of the
              marital property; and

       3.     Whether the trial court erred in ordering Father to pay for repairs to a
              vehicle awarded to Mother as part of the division of marital
              property.

                                          FACTS

       Father and Mother were married on September 24, 1994 and were legally

separated on April 14, 2011 after Mother discovered that Father had viewed pornography

on the family’s computer. Five children were born of the marriage: C.E., on May 9,

1996; A.E., on September 22, 1999; B.E., on September 25, 2003; W.E., on March 28,

2007; and E.E., on April 1, 2009.

       The trial court agreed to conduct an in-camera interview of C.E. and A.E. During

her case in chief, Mother offered into evidence a document, Exhibit 35, summarizing

fifty-one statements made by C.E. and A.E. about their interactions with Father. Father

objected that Exhibit 35 contained hearsay statements, and the trial court “let [the exhibit]

in over objection as a summary of hearsay statements solely for background information

                                             2
for the Court and its in-camera conversation with the children.” (Tr. 124). Immediately

after Exhibit 35 was admitted, Mother’s attorney informed the court that he was going to

ask Mother about some of the “high points” covered in the document. Id. Father did not

object to Mother’s subsequent lengthy testimony about interactions between Father and

each of the children.

       Father and Mother informed the trial court that Father worked as a bilingual

assistant in a local school system, earning approximately $22.32 per hour. Father also

earned approximately $300.00 per week at a part-time job. Mother was a stay-at-home

parent, and she home schooled the five children. Mother did not immediately plan to

work after the divorce; instead, she planned to continue home schooling her children

while living on child support and any cash received in the property division.

        Additional testimony from the parties informed the court that Mother was in

possession of a 2007 Chevrolet Tahoe and that Father was in possession of a 1999 Ford

Expedition. The parties also testified about various accounts that each controlled.

       After hearing the evidence and interviewing C.E. and A.E., the trial court entered a

dissolution decree that includes the following findings:

       [Mother] shall have full legal and physical custody of the minor children . .
       ..

       [Father] shall have visitation every Wednesday evening from 5:00 to 8:00
       p.m. and on every Saturday from 9:00 a.m. to 5:00 p.m., with [A.E., B.E.,
       W.E. and E.E.] [C.E.] shall not be required to visit with Father unless she
       desires.

       ** **

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       [Mother] shall have as her property the 2007 Chevrolet Tahoe and the value
       assigned to the Tahoe shall be $25,825. [Mother] shall be responsible for
       paying the balance of the debt to PNC Bank in the approximate amount of
       $15,636.46.

       ****
       Court also finds that the overall division of net assets will be 60% to
       [Mother] and 40% to [Father].

(App. 10-13). In a subsequent property division order, the trial court found that Mother’s

60 percent of the net marital estate totaled $68,208.10, which required Father to pay her

$23,863.43 in cash within 90 days of the order. (App. 17).

       Father now appeals.

1.     Father’s Visitation Rights

       Father challenges the trial court’s order as it pertains to his parenting time.

Specifically, Father argues that the trial court failed to make a specific finding to support

the limitation upon Father’s visitation rights.

       Upon review of a trial court’s determination of a visitation issue, we reverse only

when the trial court manifestly abuses its discretion. Lasater v. Lasater, 809 N.E.2d 380,

400 (Ind. Ct. App. 2004). No abuse of discretion occurs if there is a rational basis in the

record supporting the trial court’s determination. Id. Indiana “has long recognized that

the right of parents to visit their children is a precious privilege which should be enjoyed

by noncustodial parents.” Hanson v. Spolnik, 685 N.E.2d 71, 79 (Ind. Ct. App. 1997),

trans. denied. As a result, a noncustodial parent is generally entitled to reasonable




                                              4
visitation rights. Id. However, the right of visitation is subordinated to the best interests

of the children. Id.

        Indiana Code § 31-17-4-1(a) defines the visitation rights of a noncustodial parent

and provides that a non-custodial parent “is entitled to reasonable parenting time rights

unless the court finds, after a hearing, that parenting time by the noncustodial parent

might endanger the child’s physical health or significantly impair the child’s emotional

development.” In addition, the Preamble to the Indiana Parenting Time Guidelines states

that “[t]he purpose of these guidelines is to provide a model which may be adjusted

depending upon the unique needs and circumstances of each family.” Subsection 2 of the

“Scope of Application” specifies that “[t]here is a presumption that the Indiana Parenting

Time Guidelines are applicable in all cases covered by these guidelines. Any deviation

from these guidelines by either the parties or the court must be accompanied by a written

explanation indicating why the deviation is necessary or appropriate in the case.” Thus,

even though the parties in this case did not request written findings, such findings are

required on this issue because the trial court’s dissolution decree deviates significantly

from the aforementioned statute and the Indiana Parenting Guidelines.1

        Father argues that there is no admissible evidence that supports the trial court’s

finding on visitation; therefore, Father maintains that a remand to the trial court is

unwarranted. Father contends that the only evidence pertaining to the visitation issue is


1
  Mother argues that a statement made by the trial court from the bench at the end of the dissolution
hearing is sufficient to support its visitation order. The statement, however, does not assist in our review
of this issue.
                                                     5
either extra-judicial or hearsay. Father correctly argues that a judgment based solely

upon extra-judicial inquiry, such as an in-camera interview, cannot stand. Father’s Br. at

11 (citing Truden v. Jaquay, 480 N.E.2d 974, 979 (Ind. Ct. App. 1985)). Father fails,

however, to convince us that there is no other evidence upon which the trial court’s

judgment could have been premised. Specifically, Father fails to convince us that his

objection to the admission of Exhibit 35 was also an objection to Mother’s subsequent

lengthy hearsay testimony regarding interactions between Father and each of the children.

When a party fails to object to the admission of evidence at trial, the issue of admission

cannot be raised on appeal. Raess v. Doescher, 883 N.E.2d 790, 796 (Ind. 2008). In

addition, some of Mother’s testimony, including testimony concerning what she

considered to be improper “hugging” of C.E. by Father, was not hearsay. (Tr. 135-36).

       However, because there are no written findings, we are unaware of what facts, if

any, formed the basis for the trial court’s parenting time award. Therefore, we remand to

the trial court for the issuance of written findings supporting its parenting time order or

for an award of standard parenting time under the guidelines.

2.     Disproportionate Division of the Marital Estate

       Father contends that the trial court erred in not making a specific written finding as

to why a 60/40 split of the net marital estate was warranted. Father cites Chase v. Chase,

690 N.E.2d 753, 756 (Ind. Ct. App. 1998) and In re Marriage of Davidson, 540 N.E.2d

641, 646 (Ind. Ct. App. 1989) in support of his contention.



                                             6
       Indiana Code § 31-15-7-5 provides that the trial court shall presume that an equal

division of the marital property is just and reasonable. The statute also provides that the

presumption may be rebutted by a party who presents evidence which, among other

things, shows the economic circumstances of each spouse at the time of the disposition of

the property is to become effective and the earnings or earning ability of the parties as

related to a final determination of the property rights of the parties. Ind. Code § 31-15-7-

5(3) and (5).

       Although the trial court must consider all the factors listed in Indiana Code § 31-

15-7-5, it is not required to explicitly address all of the factors in every case.

Montgomery v. Faust, 910 N.E.2d 234, 239 (Ind. Ct. App. 2009). To the contrary, we

presume that the trial court considered these factors. Id.   Here, unlike in the cases cited

by Father, we do not have to speculate as to the trial court’s reasoning. The trial court

stated from the bench that its judgment was based upon the earning ability of the parties

at the time of the final determination of the property rights of the parties. Where, as here,

Father did not request specific findings, there is no requirement that the trial court’s

findings be written. The trial court’s statement from the bench is sufficient to support its

judgment regarding the division of marital property.

3.     Court Ordered Damages

       Father contends that the trial court erred in ordering him to pay for damage to the

Chevrolet Tahoe. We agree.



                                             7
       A trial court has broad discretion in ascertaining the value of the property in a

dissolution matter. O’Connell v O’Connell, 889 N.E.2d 1, 13 (Ind. Ct. App. 2008). The

property valuation must be supported by sufficient evidence and reasonable inferences

therefrom. Frazier v. Frazier, 737 N.E.2d 1220, 1225 (Ind. Ct. App. 2000).

       In its dissolution decree, the trial court determined the gross value of the vehicle to

be $25,825.00 In Finding #14 of its property division order, the trial court found the net

value of the Chevrolet Tahoe awarded to Mother to be $10,188.54. In Finding #23, the

trial court ordered Father to “reimburse [Mother] for the damage to the Tahoe in the

amount of $1,280.57.” (App. 17). Any damage to the Tahoe would have been expressed

in the gross value of the vehicle. Accordingly, there is no basis for the subsequent

damage award.

                                          CONCLUSION

       We affirm the trial court’s order deviating from the statutory presumption

provided in Indiana Code § 31-15-7-5. We reverse and remand with instructions that the

trial court vacate Finding #23 of its property division order. Furthermore, we remand for

the trial court to make written findings as directed in our discussion of Issue 1.

       Affirmed in part, reversed in part, and remanded.

ROBB, C.J., and MAY, J., concur.




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