MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Aug 14 2019, 9:19 am

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
R. Patrick Magrath                                       Ralph C. Melbourne
Alcorn Sage Schwartz & Magrath, LLP                      Montgomery Eisner & Pardieck,
Madison, Indiana                                         LLP
                                                         Seymour, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephanie Krieger,                                       August 14, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-DC-369
        v.                                               Appeal from the Jackson Superior
                                                         Court
Mark Krieger,                                            The Honorable Bruce A.
Appellee-Petitioner.                                     MacTavish, Judge
                                                         Trial Court Cause No.
                                                         36D02-1710-DC-242



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019               Page 1 of 13
                                       Statement of the Case
[1]   Stephanie Krieger (“Wife”) appeals the dissolution court’s final decree, which

      ended Wife’s marriage to Mark Krieger (“Husband”). Wife presents two issues

      for our review:


              1.      Whether the dissolution court clearly erred when it
                      awarded the parties joint physical custody of their minor
                      daughter, A.K.

              2.      Whether the dissolution court clearly erred when it divided
                      the marital estate.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[3]   Husband and Wife married in 1997 and have two children together, S.K., born

      in October of 1998, and A.K., born in August of 2001. During the marriage,

      Husband worked as a semi-truck driver, and he worked long hours on

      weekdays. Wife worked part-time and took care of the marital home and the

      children while Husband was at work.


[4]   On October 9, 2017, Husband filed a petition for dissolution of the marriage.

      At that time, S.K. was living away from home and attending college at Butler

      University, and A.K. was a junior in high school. Husband continued to live in

      the marital home until December 2017, when he moved out and got an

      apartment. Husband continued to pay most of Wife’s bills after that, including




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 2 of 13
      the mortgage payment on the marital home, utilities, and insurance. Wife quit

      her job in May 2018 due to health issues.


[5]   Following a final evidentiary hearing on the dissolution petition, the dissolution

      court conducted an in-camera interview with A.K. to discuss issues relevant to

      custody. The court then issued its final decree and found that Husband and

      Wife should “share legal and physical custody” of A.K. such that they would

      “alternate custody every other week[.]” Appellant’s App. Vol. 2 at 207. The

      court ordered Husband to pay $171.94 per week in child support, as well as “the

      house payment [on the marital home] until [A.K.] graduates from high school

      in June 2020 as a rehabilitation maintenance to maintain a house for [A.K.]” 1

      Id. at 208. The court expressly stated that Husband would not pay retroactive

      child support. In addition, the court ordered Husband and Wife collectively to

      cover fifty percent of S.K.’s tuition at Butler, after scholarships and grants, with

      Husband paying 83% of that fifty percent and Wife paying 17%. Finally, the

      court divided the marital estate equally, with Husband paying to Wife an

      equalization payment of $4,889.66. This appeal ensued.


                                      Discussion and Decision
                                              Standard of Review

[6]   Where a trial court enters findings of fact and conclusions of law, first we

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



      1
        Husband does not appeal the maintenance order. We note that Wife testified at the final hearing that she
      anticipated being employed in the near future.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019                  Page 3 of 13
      whether the findings support the judgment. Lechien v. Wren, 950 N.E.2d 838,

      841 (Ind. Ct. App. 2011). We will set aside the trial court’s specific findings

      only if they are clearly erroneous, that is, when there are no facts or inferences

      drawn therefrom to support them. Id. A judgment is clearly erroneous when a

      review of the record leaves us with a firm conviction that a mistake has been

      made. Id. We neither reweigh the evidence nor assess the credibility of

      witnesses but consider only the evidence most favorable to the judgment. Id.

      The findings control only as to the issues they cover, and a general judgment

      standard applies to issues upon which the trial court made no findings. Id.


                                            Issue One: Custody

[7]   Wife contends that the dissolution court abused its discretion when it ordered

      that she and Husband would share physical custody of A.K. equally. Wife

      maintains that the court should have awarded her primary physical custody of

      A.K. In an initial custody determination, both parents are presumed equally

      entitled to custody, and “[t]he court shall determine custody and enter a

      custody order in accordance with the best interests of the child.” Ind. Code §

      31-17-2-8 (2019); see also Kondamuri v. Kondamuri, 852 N.E.2d 939, 945 (Ind. Ct.

      App. 2006). In determining the child’s best interests, the trial court must

      consider all relevant factors, which are as follows:


              (1) The age and sex of the child.

              (2) The wishes of the child’s parent or parents.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 4 of 13
         (3) The wishes of the child, with more consideration given to the
         child’s wishes if the child is at least fourteen (14) years of age.

         (4) The interaction and interrelationship of the child with:

                 (A) the child’s parent or parents;

                 (B) the child’s sibling; and

                 (C) any other person who may significantly affect the
                 child’s best
                 interests.

         (5) The child’s adjustment to the child’s:

                 (A) home;

                 (B) school; and

                 (C) community.

         (6) The mental and physical health of all individuals involved.

         (7) Evidence of a pattern of domestic or family violence by either
         parent.

         (8) Evidence that the child has been cared for by a de facto
         custodian. . . .


I.C. § 31-17-2-8. The trial court’s decisions on child custody are reviewed only

for an abuse of discretion. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App.

2006).




Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 5 of 13
[8]    On appeal, Wife directs us to her testimony that Husband: “engaged in

       inappropriate physical contact” with A.K.; “had a history of pinching Wife’s

       arms, thighs, buttocks, and breasts, causing pain and leaving bruises”; and

       “engaged in sexually explicit messaging and photo exchanges with women

       while still married to Wife.” Appellant’s Br. at 13. And Wife asserts that there

       “was no serious dispute in the record regarding which parent had consistently

       provided the most stable care for [A.K.] throughout her seventeen (17) years.”

       Id. Thus, Wife maintains that the court should have awarded Wife primary

       physical custody of A.K.


[9]    Wife’s contentions on appeal are a request that we reweigh the evidence and

       assess witnesses’ credibility, which we cannot do. The evidence supports the

       court’s award of joint custody to Husband and Wife. Indeed, the court

       conducted an in-camera interview of seventeen-year-old A.K., and the court

       stated that it “evaluated the factors for making a custody determination” under

       Indiana Code Section 31-17-2-8, which include the child’s wishes, with “more

       consideration” given to A.K.’s wishes because of her age. Appellant’s App.

       Vol. 2 at 207. The dissolution court did not abuse its discretion when it

       awarded the parties joint custody of A.K.


                                         Issue Two: Marital Estate

[10]   Wife next contends that the dissolution court abused its discretion when it gave

       Husband a credit against the marital estate for certain bills and other expenses

       incurred by Wife and the children that he had paid prior to the final hearing. A

       trial court must divide the property of the parties to a marital dissolution in a
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 6 of 13
       just and reasonable manner. Webb v. Schleutker, 891 N.E.2d 1144, 1153 (Ind.

       Ct. App. 2008) (citing I.C. § 31-15-7-4(a)). An equal division of marital

       property is presumed to be just and reasonable. Id. (citing I.C. § 31-15-7-5).

       Decisions concerning the division and distribution of marital assets lie within

       the sound discretion of the trial court. Fischer v. Fischer, 68 N.E.3d 603, 608

       (Ind. Ct. App. 2017), trans. denied. On appeal, we review the trial court’s

       decision only for an abuse of that discretion. Id. A trial court abuses its

       discretion only when its decision is clearly against the logic and effect of the

       facts and circumstances before the court. Id. When we review a challenge to

       the trial court’s division of marital assets, we consider only the evidence most

       favorable to the trial court’s disposition, and we will neither reweigh the

       evidence nor assess the credibility of witnesses. Id.


[11]   At the final hearing, Husband submitted as evidence Petitioner’s Exhibit 7,

       which consisted of a list of expenses and bills Husband had paid on behalf of

       Wife and their children from the date of the petition for dissolution of marriage

       until the date of the final hearing. In particular, Husband listed “miscellaneous

       expenses” totaling $3,106.05, which included cash he gave to the children, a

       coffee maker for Wife, school supplies for the children, a dress for A.K., and

       gasoline for Wife. Appellant’s App. Vol. 2 at 101. Husband also listed

       monthly bills he had paid, including mortgage payments for the marital home,

       automobile insurance for Wife and A.K., and various utility bills. The total of

       all of the expenses and bills paid for by Husband and listed in his Exhibit 7 was

       $27,151.86. In the final decree, the trial court found the $27,151.86 to be a


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 7 of 13
       “debt” to Husband before the court divided the estate equally between Husband

       and Wife. Id. at 211.


[12]   On appeal, Wife first asserts that Husband had requested that the court not

       order retroactive child support—that is, child support during the pendency of

       the dissolution proceedings—and that Husband had “stipulated” that “he

       should not receive credit for the payment of these bills and expenses against the

       marital estate.” Appellant’s Br. at 15. Wife maintains that, because the court

       did not also order retroactive child support, the court abused its discretion when

       it gave Husband a credit in the amount of the bills and expenses he had paid

       while the dissolution was pending. In essence, Wife asserts that the dissolution

       court had discretion to either order Husband to pay retroactive child support

       and receive a credit for the amounts of bills and expenses he had paid, or order

       no retroactive child support but award no credit to Husband.


[13]   First, Wife does not support this contention with citation to relevant authority.

       Second, Husband did not “stipulate” to anything. Husband’s attorney merely

       stated that Husband was “not trying to get reimbursed for all that money.” July

       12, 2018, Tr. Vol. 2 at 85. In any event, the dissolution court had discretion to

       award Husband a credit notwithstanding Husband’s remarks, which did not

       amount to a stipulation. Third, and moreover, Wife does not direct us to any

       evidence regarding the amount of retroactive child support that might have

       been ordered relative to the $27,151.86 credit awarded to Husband.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 8 of 13
[14]   Husband asserts, and Wife does not dispute, that, if ordered, the retroactive

       child support would only have totaled approximately $2,800. And, in addition

       to the $27,151.86 in expenses that he covered while the dissolution was

       pending, the rehabilitative maintenance Husband is ordered to pay totals

       approximately $22,270. “Division of property should not be considered in a

       vacuum, and the trial court is free to consider other awards (such a[s] spousal

       maintenance) when determining the proper division.” Augspurger v. Hudson, 802

       N.E.2d 503, 513 (Ind. Ct. App. 2004). We cannot say that the court erred

       when it both declined to order Husband to pay retroactive child support and

       awarded Husband a credit for bills and expenses he had paid while the

       dissolution was pending.


[15]   Still, Wife contends that the trial court abused its discretion when it awarded

       Husband a credit for: “bills and expenses paid while he was still living in the

       marital residence through December of 2017”; “bills and expenses that were

       solely related to adult Son[, S.K.]”; and a “double credit” for paying off a Visa

       account and a Best Buy account. Appellant’s Br. at 16-17. However, Wife does

       not explain, with citation to relevant authority, why the dissolution court did

       not have discretion to award Husband credit for bills and expenses he paid

       while he lived in the marital residence or those made for the benefit of S.K.

       Nonetheless, we address the merits of each of these contentions in turn.


[16]   As for Husband’s credit for paying bills and expenses while he lived in the

       marital home, our holding in Bojrab v. Bojrab, 786 N.E.2d 713, 722 (Ind. Ct.

       App. 2003), aff’d in relevant part, 810 N.E.2d 1008 (Ind. 2006), is instructive. In

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 9 of 13
       Bojrab, the husband lived in the marital residence for approximately three weeks

       after the wife filed a petition for dissolution on January 10, 2000. The

       dissolution court ordered the husband to continue to pay the mortgage on the

       marital home after he moved out. And in the final decree, the court ordered

       that the marital home be sold with forty percent of the net proceeds going to the

       husband and sixty percent going to the wife. Thereafter, the dissolution court

       granted the husband’s motion to correct error and “ordered that Husband ‘shall

       be reimbursed from the proceeds of the sale of the marital residence an amount

       equal to the monthly principle [sic] and interest mortgage payments paid by

       him from January 10, [2000][] to the date of closing.’” Id. at 722.


[17]   On appeal, the wife argued that “the trial court erred when it granted

       Husband’s request for additional money from the sale of the marital residence

       because it ‘changed the overall division of assets and created a monetary

       windfall.’” Id. The wife claimed that “‘granting [Husband] 100%

       reimbursement for interest payments place[d] the entire responsibility for such

       debt upon [Wife].’” Id. We rejected the wife’s contentions on appeal and held

       as follows:


               The marital estate is to be closed at the time of the filing of the
               petition for dissolution. Wilson v. Wilson, 732 N.E.2d 841, 846
               (Ind. Ct. App. 2000) (“We agree with Husband that the marital
               pot closes on the date the petition for dissolution is filed.”), trans.
               denied. Wife filed the petition for dissolution on January 10,
               2000. After that date, Husband paid all mortgage payments.
               After the trial court granted Husband’s motion to correct error,
               Husband was reimbursed for all payments made after January


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 10 of 13
               10, 2000. Essentially, the trial court restored the parties to their position
               when the petition for dissolution was filed.


       Id. (emphasis added). Thus, we affirmed the credit to the husband for the

       mortgage payments he had made from the date of the dissolution petition even

       though he lived in the marital home for approximately three weeks during that

       period. We also held that,


               [t]o the extent Wife was responsible for more of the interest than
               Husband, pursuant to her entitlement to 60% of the net proceeds
               from the house, such difference does not amount to an abuse of
               the trial court’s discretion in light of the fact that Wife lived in the
               house for over two years without making a house payment.”


       Id. (emphasis added).


[18]   Here, Husband lived in the marital home a little over two months after he filed

       the petition. And by the time A.K. graduates from high school in June 2020,

       Wife will have lived in the marital home for more than two years without

       making a house payment. Upon A.K.’s graduation, the parties will sell the

       marital home and divide the proceeds from the sale fifty-fifty. The dissolution

       court awarded Husband a credit for the mortgage payments he made between

       the date the petition was filed until the final hearing, but Husband will not

       receive a credit for the nearly equal payments he is making under the

       rehabilitative maintenance order, which he does not appeal. Because the

       marital estate closed on October 9, 2017, and because the parties will split the

       proceeds from the sale of the marital home after June 2020, we cannot say that


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019    Page 11 of 13
       the dissolution court abused its discretion when it awarded Husband a credit for

       all of the mortgage payments he had made, including the ones he made while

       he lived there for a short time in late 2017.


[19]   Regarding Husband’s credit for certain expenses “that were solely related to

       [S.K.],” Wife challenges the credit for money spent on S.K.’s “New York Trip,

       [his] groceries, [his] school supplies, and [his] ‘movie, meal and clothes.’”

       Appellant’s Br. at 16. Wife does not state the amounts of those credits, but our

       review of Petitioner’s Exhibit 7 shows that those credits totaled less than $400

       over the course of six months. And Wife does not support her contention with

       respect to those credits with citation to relevant authority. We cannot say that

       the dissolution court abused its discretion when it awarded Husband a credit for

       those expenses.


[20]   We agree with Wife, however, that the court erroneously gave Husband double

       credit for paying off the Visa and Best Buy credit card accounts. Those

       amounts were both included in the $27,151.86 in bills and expenses credited to

       Husband and listed separately as credits to Husband in the court’s division of

       the marital estate. Accordingly, we reverse that part of the decree and remand

       with instructions to the court to adjust the division of the marital estate by

       removing those individual credits ($435.78 and $1,124.98, respectively) from

       Husband’s side of the ledger and recalculating the division of the marital estate.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 12 of 13
                                                   Conclusion

[21]   Wife has not demonstrated that the dissolution court abused its discretion when

       it awarded the parties joint physical custody of A.K. And, other than two

       double credits, which error the court will correct on remand, neither has Wife

       shown that the dissolution court abused its discretion when it awarded

       Husband a credit for bills and expenses he covered while the dissolution

       petition was pending.


[22]   Affirmed in part, reversed in part, and remanded with instructions.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-369 | August 14, 2019   Page 13 of 13
