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.


ATTORNEYS FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

DAVID W. STONE IV                                   DANIEL J. BORGMANN
Stone Law Office & Legal Research                   Helmke Beams LLP
Anderson, Indiana                                   Fort Wayne, Indiana

ALLAN R. STOUT
Stout & McEntarfer, P.C.
Angola, Indiana                                                        FILED
                                                                    Apr 23 2012, 9:35 am


                                                                            CLERK
                                                                          of the supreme court,
                                                                          court of appeals and

                               IN THE                                            tax court




                     COURT OF APPEALS OF INDIANA

IN RE: THE MARRIAGE OF BRENDA S.                    )
SANDERS and PAUL R. SANDERS,                        )
                                                    )
PAUL R. SANDERS,                                    )
                                                    )
       Appellant-Respondent,                        )
                                                    )
               vs.                                  )      No. 76A03-1107-DR-398
                                                    )
BRENDA S. SANDERS,                                  )
                                                    )
       Appellee-Petitioner.                         )

                     APPEAL FROM THE STEUBEN CIRCUIT COURT
                       The Honorable Monte L. Brown, Special Judge
                             Cause No. 76C01-0911-DR-401

                                          April 23, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       Paul Sanders (Husband) appeals the trial court’s division of marital property pursuant

to the dissolution of his marriage from Brenda Sanders (Wife). Wife cross-appeals

requesting appellate attorneys’ fees. We affirm the trial court’s decision and deny Wife’s

request for appellate attorneys’ fees.

                       FACTS AND PROCEDURAL HISTORY

       Husband and Wife were married on October 10, 1987. At the beginning of their

marriage, Husband’s parents sold real estate containing a vacant house to Husband and Wife

for $1.00. The property was titled to both Husband and Wife, and it served as the parties’

marital residence. In 2000, Husband’s father died. As part of his father’s estate, Husband

received an undivided one-half interest in the family farm. The other half went to Husband’s

mother. Husband’s mother did not live on the farm; instead, it was rented to an independent

farmer for $20,000 per year. During their marriage, Wife made approximately $495 per

week from her employment at WalMart. Husband made approximately $1,425 per week

running a trucking business he and Wife owned.

       Wife filed for dissolution on November 24, 2009. The trial court issued findings of

fact and conclusions of law dissolving the parties’ marriage on May 12, 2011.

                             DISCUSSION AND DECISION

       The trial court issued specific findings at the request of the parties pursuant to Ind.

Trial Rule 52(A). Thus, our standard of review is two-tiered. Bloodgood v. Bloodgood, 679

N.E.2d 953, 956 (Ind. Ct. App. 1997). First, we must determine whether the evidence

supports the findings and then whether the findings support the judgment. Id. We will

                                              2
reverse the judgment only when it is clearly erroneous. Id. Findings are clearly erroneous

when the record lacks any evidence to support them. Id. We will neither reweigh the

evidence nor assess witness credibility. Id.

       The trial court determined the value of the marital estate totaled $793,814. Nearly

eighty percent of the estate - $619,970 - was the value of the farm Husband inherited from

his father. The trial court distributed seventy-five percent of the marital pot to Husband, but

Husband argues the trial court erred when it awarded Wife a portion of his interest in the

property he inherited from his father. We disagree.

       The determination of the assets and liabilities included in the marital estate is

governed by Ind. Code § 31-15-7-4(a), which states, in relevant part:

       (a)     In an action for dissolution of marriage under IC 31-15-2-2, the court
       shall divide the property of the parties, whether:
               (1)    owned by either spouse before marriage;
               (2)    acquired by either spouse in his or her own right:
                      (A) after the marriage; and
                      (B) before the final separation of the parties; or
               (3)    acquired by their joint efforts.

The trial court found Husband inherited the farm property from his father in 2000, which was

after the parties were married, and before their separation. Therefore, the farm is part of the

marital estate. See, e.g., Grathwohl v. Garrity, 871 N.E.2d 297, 301 (Ind. Ct. App. 2007) (all

property owned by the parties prior to separation is required to be included in marital estate,

including inherited property).     Accordingly, we affirm the trial court’s inclusion of

Husband’s farm inheritance in the marital estate.

       Division of the assets between divorcing parties is left to the trial court’s discretion.

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Akers v. Akers, 729 N.E.2d 1029, 1031-32 (Ind. Ct. App. 2000). Even if the facts and

reasonable inferences might allow us to reach a conclusion different from that of the trial

court, we will not substitute our judgment unless its decision is clearly against the logic and

effect of the facts and circumstances before it. Id. We consider only the evidence favorable

to the judgment. Goodman v. Goodman, 754 N.E.2d 595, 599 (Ind. Ct. App. 2001), reh’g

denied. We may not reweigh the evidence or reassess the credibility of the witnesses. Akers,

729 N.E.2d at 1032.

       A party challenging a property division must “overcome a strong presumption that the

court considered and complied with the applicable statute.” Id. (quoting In re Marriage of

Bartley, 712 N.E.2d 537, 542 (Ind. Ct. App. 1999)). We consider the court’s disposition of

marital property “as a whole, not item by item.” Krasowski v. Krasowski, 691 N.E.2d 469,

473 (Ind. Ct. App. 1998). When we review the division, our focus is on what the court did,

not what the court could have done. Akers, 729 N.E.2d at 1032.

       When determining how the martial estate should be divided, the trial court presumes

an equal division of property between the parties is “just and reasonable.” Ind. Code § 31-

15-7-5. When this presumption is rebutted, the trial court considers:

        (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
                                              4
       or dissipation of their property.
       (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.

       Regarding inheritances, we have held the trial court may deviate from an equal

distribution of marital property when one party proves (1) he or she is the sole owner of the

account, (2) the other spouse did not contribute to or benefit from the funds in the account,

(3) the inherited funds were not commingled with other marital assets, and (4) the funds were

not used as if they were marital property. Castaneda v. Castaneda, 615 N.E.2d 467, 470-71

(Ind. Ct. App. 1993).

       Addressing the Castaneda factors, the trial court found:

       25.    On December 28, 2000, [Husband] inherited an undivided one-half
              interest in 344.428 acres of real estate located in Steuben County,
              Indiana (“FARM”) which real estate is more particularly described in
              Exhibits “B”, “C” and “D” attached hereto. For the most part, the
              FARM consists of undeveloped land.
                                            ***
       29.    Neither [Wife] nor [Husband] actively farmed the FARM after
              [Husband] received his undivided one-half interest in it on December
              28, 2000.
       30.    [Husband] has repaired FARM tile and/or mended fences on occasion
              since December 28, 2000.
       31.    [Wife] provided some nominal assistance to [Husband’s mother] with
              regard to the FARM books for a year or two prior to 2007, after which
              time, for a period of approximately two (2) years, [Wife] took over the
              primary responsibility for the FARM bookkeeping operations.
       32.    [Husband] and [Husband’s mother] rented the FARM land to Tim
              Farriote on an annual gross farm rent basis from 2000 through the date
              of the separation. In 2009, the annual gross farm rent was $20,446.
       33.    The FARM’s real estate taxes and insurance were paid out of the gross
              FARM rent.
       34.    The remaining balance of the gross FARM rent from 2000 through the
                                              5
             date of separation was used exclusively by [Husband’s mother] to pay
             for her ongoing expenses such as utilities and credit card bills.
      35.    Neither [Husband] nor [Wife] receive any portion of, or any benefit
             from, any of the gross FARM rent, of any type or description, from
             2000 through December 31, 2009 except for the payment of the real
             estate taxes and insurance.
                                           ***
      37.    That aside from the day to day marriage obligations or maintaining her
             household and providing for her husband and children, [Wife] did not
             participate in operation of her husband’s family farm. [Wife] tried to
             plow once, without success. [Wife] would occasionally drive to town
             to obtain parts for broken farm equipment. [Wife] assisted [Husband]
             and their children in caring for cattle which were maintained rent free
             on the [Husband’s mother’s] farm. Once the cattle were sold the parties
             hereto shared the income from the cattle sales. [Wife] did testify,
             without any corroborating evidence, that [Husband] and [Wife] paid
             some farm bills including parts, cattle feed and supplies for the cattle
             operation, from the [Husband]’s Trucking company account. The
             evidence further established that [Husband’s mother] received no
             financial benefit from [Husband and Wife’s] cattle operation.
      38.    The [sic] aside from the marital relationship of the parties, [Wife] made
             no financial contributions to the acquisition or maintenance of
             [Husband’s] one-half (1/2) share of the FARM inherited by him
             following his father’s death.
      39.    That [Wife’s] name never appeared on any documents evidencing
             ownership interest in the [Husband’s] and [Husband’s mother’s]
             244.428 acre farm.
      40.    That in the years following [Husband’s] inheritance of an interest in the
             FARM property, [Husband] never conveyed any of his interest to
             [Wife], rather, he maintained his interest in the FARM solely in his
             name.
      41.    That for all practical purposes, [Husband’s mother] has exercised
             nearly complete dominion and control over all the FARM real estate,
             including that deeded to [Husband] in December, 2000.

(App. at 13-15.)

      As indicated in Finding 37, Wife testified a portion of the bills for the farm were paid

from Husband’s trucking business account, which was part of the marital estate. Wife


                                             6
presented tax forms to indicate the rent from the farm and all depreciation stemming from

items on the farm were listed as part of Husband’s trucking company assets and liabilities.

The trial court found the process by which the farm income was reported on the trucking

company taxes “financially benefited [Wife] and [Husband].” (Id. at 15.) In addition, the

trial court found, “That on rare occasion, [Wife] and [Husband] used nominal personal funds

of their own to pay for FARM expenses when there were insufficient funds in what [Wife]

and [Husband] referred to as the FARM account.” (Id. at 15-16.)

       Based on the trial court’s findings, we conclude the trial court did not err when it

distributed most of the farm to Husband. Even though the interest in the farm was in

Husband’s name only, the evidence presented supports the trial court’s finding some of the

funds from Husband’s ownership interest in the farm benefitted both Husband and Wife,

particularly in the case of the tax benefits; marital assets were used to benefit the farm; the

funds from the farm were comingled with other marital assets, such as Husband’s trucking

company; and those funds Husband and Wife did receive from the farm, such as the tax

benefits, were used as marital property. Accordingly, we hold the trial court did not abuse its

discretion when it gave Wife the monetary value of a portion of Husband’s interest therein.

See, e.g., McMaster v. McMaster, 681 N.E.2d 744, 748 (Ind. Ct. App. 1997) (trial court did

not abuse its discretion when it included husband’s inheritance in marital estate and divided

the marital estate unequally in favor of husband).




                                              7
       2.     Appellate Attorneys’ Fees

       In her cross-appeal, Wife requests appellate attorneys’ fees pursuant to Ind. Appellate

Rule 66(E), which states in relevant part: “The Court may assess damages if an appeal,

petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s

discretion and may include attorneys’ fees.” Wife claims Husband’s appeal was brought in

bad faith. She notes he used as a basis for his appeal a decision that has been abrogated by

statute, and argues that proves he intended to “wear down Wife’s financial resources with the

appeal having no real merit.” (Br. of Appellee at 19.)

       An award of appellate attorneys’ fees pursuant to Rule 66(E) is discretionary and may

be ordered when an appeal is “replete with meritlessness, bad faith, frivolity, harassment,

vexatiousness, or purpose of delay.” Trost-Steffan v. Steffan, 772 N.E.2d 500, 514 (Ind. Ct.

App. 2002), reh’g denied. In awarding these fees we must use extreme restraint because of

the potential chilling effect upon the exercise of the right to appeal. Id. The sanction of

appellate damages for lack of merit should be applied only when a party’s contentions and

arguments are “utterly devoid of all plausibility.” Id.

       While ultimately unsuccessful, Husband’s arguments were not void of all plausibility,

and were reasonable challenges to the court’s exercise of its discretion in dividing the parties’

marital estate. Accordingly, we deny Wife’s request for appellate attorneys’ fees.




                                               8
                                         CONCLUSION

       We hold the trial court did not err when it found the farm Husband inherited was part

of the marital estate and distributed most of it to Husband. Additionally, we deny Wife’s

request for appellate attorneys’ fees.

       Affirmed.

CRONE, J., and BROWN, J., concur.




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