MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                        Jul 24 2015, 10:46 am
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE
John Lane
New Castle, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of                                    July 24, 2015
                                                         Court of Appeals Case No.
John Lane                                                49A02-1405-DR-354

Appellant,                                               Appeal from the Marion Superior
                                                         Court
        v.
                                                         The Honorable Patrick L. McCarty,
                                                         Judge
Leisa Lane,
Appellee                                                 Cause No. 49D03-1302-DR-7769




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1405-DR-354| July 24, 2015           Page 1 of 10
                                                    Case Summary
[1]   In this appeal, John Lane (“John”), proceeding pro se, appeals the trial court’s

      order dissolving his marriage to Leisa Lane (“Leisa”).1 We affirm in part,

      reverse in part, and remand for further proceedings.



                                                       Issues
[2]   John presents three issues for our review. We restate these as:

                    I.     Whether the trial court erred when it concluded that the
                           marriage had suffered an irretrievable breakdown;
                   II.     Whether the trial court abused its discretion in its distribution
                           of the marital pot; and
                  III.     Whether the trial court abused its discretion when it denied
                           John’s request to obtain discovery from Leisa.


                                  Facts and Procedural History
[3]   John and Leisa were married on January 30, 1998. Prior to this, John had been

      convicted of Rape, but obtained post-conviction relief at the trial court. Upon

      appeal of that decision, on April 23, 1998, this Court reinstated John’s

      conviction. State v. Lane, 694 N.E.2d 793 (Ind. Ct. App. 1998) (Table), trans.

      denied. Since November 1998, and throughout the instant proceedings, John

      has been incarcerated in the Indiana Department of Correction.




      1
          Leisa did not file an appellee’s brief.


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[4]   Since that date, Leisa purchased property held solely in her name, including an

      automobile and a residence in Indianapolis. John did not contribute to the

      acquisition of these assets.


[5]   On February 28, 2013, Leisa filed a petition to dissolve the marriage. An

      evidentiary hearing was conducted on May 30, 2013. Leisa testified in person,

      and John, proceeding pro se, testified by telephone. On the date of the hearing,

      Leisa tendered a proposed dissolution decree. The same day, the trial court

      adopted and entered the proposed order as its decree of dissolution.


[6]   The dissolution decree found that the residence Leisa had acquired was her sole

      and separate property. The decree also ordered that “Husband and Wife shall

      have possession and title [to] the vehicle in their possession,” and that each

      would “indemnify and hold the other harmless on the payment of any debt on

      his or her respective vehicle.” App’x at 7. The order divided all other personal

      property by allocating each item to the party then in possession or with control

      of it.


[7]   After the trial court entered its dissolution decree, John filed several motions,

      including motions seeking 1) an order to require marital counseling with the

      goal of reconciliation (filed June 10, 2013), 2) permission to obtain discovery

      (filed June 12, 2013), and 3) reopening of the case and judgment on the

      evidence (filed June 18, 2013). The trial court denied these motions on June 26,

      2013.




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[8]    John subsequently filed a motion for relief from judgment, alleging in a

       supporting affidavit that he had not received notice or the decree itself, and that

       as a result he had been deprived of his right to appeal the dissolution decree.

       The trial court denied John’s motion for relief from judgment; John appealed.

       In an unpublished memorandum decision, this Court concluded that because

       John did not have notice of the dissolution decree, he was permitted to file a

       direct appeal of that decree within thirty days of the certification of our

       decision. In re the Marriage of Lane, No. 49A02-1308-DR-698, Slip. op. at 5-6

       (Ind. Ct. App. May 1, 2014).


[9]    This appeal ensued.



                                  Discussion and Decision
[10]   John appeals the trial court’s dissolution decree. In the instant matter, our

       standards of review are modified somewhat because Leisa did not file an

       appellee’s brief. In such cases, we do not develop an argument on behalf of the

       appellee. Montgomery v. Faust, 910 N.E.2d 234, 237 (Ind. Ct. App. 2009). The

       appellant—here, John—needs only to demonstrate prima facie error, that is,

       error “at first sight, on first appearance, or on the face of it.” Id.


[11]   We note here that John proceeds pro se. We hold pro se litigants to the same

       standards as trained attorneys. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind.

       2014). Thus, while a court may take “reasonable steps” to prevent a pro se




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       litigant from being placed at an unfair advantage, there is no inherent lenience

       afforded “simply by virtue of being self-represented.” Id.


[12]   In this case, John identifies three bases for appeal. We address each in turn.


                                     Irretrievable Breakdown
[13]   On appeal, John contends that there was insufficient evidence of irretrievable

       breakdown of the marriage. See I.C. § 31-15-2-3(1) (providing that a trial court

       “shall” decree a marriage dissolved when there has been an “irretrievable

       breakdown of the marriage”). “When a petition for dissolution alleges

       ‘irretrievable breakdown,’ the key issue is whether there is a reasonable

       possibility of reconciliation.” Moore v. Moore, 654 N.E.2d 904, 905 (Ind. Ct.

       App. 1995). If such a possibility exists, the trial court may continue the matter

       and order the parties to seek reconciliation through counseling; otherwise, the

       trial court must dissolve the marriage. Id.


[14]   In concluding that there is no reasonable possibility of reconciliation, the trial

       court “must be satisfied that the parties can no longer live together because of

       difficulties so substantial that no reasonable effort could reconcile them.” Id.

       The inquiry goes to “the marital relationship as a whole.” Id. All surrounding

       facts must be inquired into, and both the state of mind of the parties and

       observable actions are relevant to the trial court’s decision. Id. at 905-06. On

       appeal, we review the trial court’s decision only to determine whether the

       judgment is supported by substantial evidence of probative value. Id. at 905.



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[15]   During the hearing, Leisa testified that she and John had separated in

       November 1998, and that there had been an irretrievable breakdown of the

       marriage. Tr. at 2-3. For his part, John testified specifically that the separation

       date was November 5, 1998, and stated that “I was re-convicted for a felony,

       and as a result of that, it’s cause for a separation, and that is the proper grounds

       that I would like to proffer.” Tr. at 5-6. John averred in the trial-level motions

       leading to this appeal that he had not seen Leisa since May 2007. (Br. at 16.)

       Thus, John and Leisa lived apart for nearly fifteen years. Throughout this time,

       Leisa conducted her life independent from John, eventually purchasing a car

       and a home.


[16]   The long period of separation, taken with the apparent lack of contact between

       the parties, is sufficient to support the trial court’s decision that the marriage

       had suffered an irretrievable breakdown. Even with our modified standard of

       review in the absence of an appellee’s brief, we find no error in this respect, and

       affirm the trial court’s order to the extent it dissolved the marriage.


                                       Distribution of Assets
[17]   We turn to John’s second issue on appeal, whether the trial court abused its

       discretion when it awarded Leisa sole ownership of the residence and her car.


[18]   The division of marital assets is ordinarily reserved to the trial court’s sound

       discretion. Crider v. Crider, 26 N.E.3d 1045, 1047 (Ind. Ct. App. 2015). We

       reverse only for abuse of that discretion, which occurs when the judgment of the

       trial court is contrary to the logic and effect of the facts and circumstances

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       before it, or when the court errs on a matter of law. Krasowski v. Krasowski, 691

       N.E.2d 469, 472 (Ind. Ct. App. 1998). However, as noted above, our standard

       of review is supplemented here by the prima facie error standard that arises from

       the absence of an appellee’s brief from Leisa.


[19]   Indiana uses the “one-pot” approach to distribution of marital assets. Thompson

       v. Thompson, 811 N.E.2d 888, 912 (Ind. Ct. App. 2004), trans. denied. By

       statute, the court shall divide the property of the parties, whether the property

       was owned by either spouse before the marriage, was acquired solely by one or

       the other spouse in his or her own right between the date of the marriage and

       the final separation date, or was acquired through the joint efforts of the parties.

       I.C. § 31-15-7-4(a). The final separation date of the parties controls the closing

       of the marital pot for purposes of its distribution. Our statutes provide that the

       date of final separation, for purposes of the dissolution of marriage statutes,

       “means the date of the filing of the petition for dissolution of marriage,” unless

       1) a previously existing proceeding for legal separation had been initiated before

       the petition date, or 2) a provisional order or final decree for legal separation

       was already in effect before the dissolution petition had been filed. I.C. § 31-9-

       2-46. Thus, “[o]nly property acquired by an individual spouse after the final

       separation date is excluded from the marital estate.” Thompson, 811 N.E.2d at

       912.


[20]   Marital property must be divided in a just and reasonable manner, I.C. § 31-15-

       7-4(b), and the court shall presume equal division of the marital property is just

       and reasonable unless one or the other party presents evidence to rebut that

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       presumption. I.C. § 31-15-7-5. When the presumption has been rebutted so

       that the trial court deviates from an equal division, the court must state its

       reasons for the deviation. Alexander v. Alexander, 927 N.E.2d 926, 941 (Ind. Ct.

       App. 2010), trans. denied.


[21]   Here, the trial court adopted Leisa’s proposed dissolution decree. Without

       specifying any reasons for deviation from the statutory presumption of equal

       division of the assets, the trial court ordered that Leisa hold the Indianapolis

       residence as her “sole and separate property.” App’x at 7. The court also

       ordered each party to “have possession and title of the vehicle in their

       possession” and to hold one another harmless for debts associated with each

       one’s vehicle. App’x at 7. No evidence was presented as to the purchase dates

       of either the car or the residence, other than Leisa’s acknowledgement that she

       had purchased the house “recently.” Tr. at 3.


[22]   Without evidence concerning the purchase dates of the vehicle and the home, it

       appears at first sight that the trial court deviated from the presumption of equal

       division of assets. But the court did not identify any basis upon which its

       deviation from the statutory presumption might rest. There was ample

       evidence from which the trial court could reach such a conclusion, including

       the date upon which John was incarcerated and Leisa’s testimony that the car

       and home were obtained solely as a result of her efforts and without

       contribution from John. Yet the court did not state this rationale. Thus, the

       trial court erred.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1405-DR-354| July 24, 2015   Page 8 of 10
[23]   Because Leisa has not filed an appellee’s brief, our standard of review upon

       appeal requires that we reverse upon a finding of prima facie error. John has

       established the existence of such an error with respect to the distribution of the

       marital pot. We accordingly reverse the trial court’s order to the extent it calls

       for an unequal distribution of assets, and remand the case with instructions to

       enter a marital property distribution order that comports with the established

       standards specified herein. See Raval v. Raval, 556 N.E.2d 960, 962 (Ind. Ct.

       App. 1990) (remanding where the trial court deviated from the statutory

       presumption without articulating its reasoning).


                                                 Discovery
[24]   Finally, we address John’s contention that the trial court abused its discretion

       when it denied his motion for permission to obtain discovery from Leisa.


[25]   Matters related to the conduct of discovery are left to the sound discretion of

       our trial courts. Int’l Bus. Machs. Corp. v. ACS Human Servs., LLC, 999 N.E.2d

       880, 885 (Ind. Ct. App. 2013), trans. denied. We reverse a trial court’s discovery

       orders only upon an abuse of that discretion. Id. “When a party is confronted

       with surprise evidence, ordinarily the proper response is to move for a

       continuance.” Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1273

       (Ind. 2008) (quotations omitted).


[26]   John complains that he only learned at the final hearing of Leisa’s purchase of a

       residence and a car, and that he was entitled to seek discovery after the hearing

       in response to this surprise evidence. There is no indication that John sought

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       any discovery before the hearing. And John did not seek a continuance, nor

       did he ask any questions or make any statements during the hearing concerning

       the existence of such property. In sum, then, John waived any discovery

       opportunities, and the trial court was within its discretion to deny John’s

       request to seek discovery after the date of the final hearing. We affirm the trial

       court in this respect.



                                               Conclusion
[27]   There was sufficient evidence to support the portion of trial court’s order that

       ordered the marriage be dissolved. The trial court did not adequately articulate

       its reasons for deviating from the statutory presumption of equal division of

       marital assets. The trial court did not abuse its discretion when it denied John’s

       motion seeking leave to seek discovery from Leisa. We therefore affirm the

       trial court’s dissolution decree in part, reverse in part, and remand with

       instructions to enter an order that complies with our requirements for

       distribution of marital assets under Indiana statutes and applicable case law.


[28]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Barnes, J, concur.




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