                                                                        FILED
                                                                   Sep 14 2016, 9:01 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Zachary J. Stock                                           David A. Smith
Zachary J. Stock, Attorney at Law,                         Patrick J. Smith
P.C.                                                       McIntyre & Smith
Carmel, Indiana                                            Bedford, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey L. McMahel,                                       September 14, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          59A04-1601-PL-91
        v.                                                Appeal from the Orange Circuit
                                                          Court
Mary A. Deaton,                                           The Honorable Larry R. Blanton,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          59C01-1403-PL-73



Brown, Judge.




Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016                 Page 1 of 22
[1]   Jeffrey L. McMahel appeals the trial court’s order awarding certain property to

      Mary A. Deaton following their cohabitation. McMahel raises one issue which

      we revise and restate as whether the court’s order is clearly erroneous. We

      affirm.


                                       Facts and Procedural History

[2]   In 1996, McMahel and Deaton met and Deaton moved into McMahel’s house

      on Hudleson Street in Paoli, Indiana. McMahel and Deaton had one child

      together born in April 1998. McMahel and Deaton’s relationship ended in

      February 2014.


[3]   On March 20, 2014, Deaton filed a Complaint for Partition and/or Unjust

      Enrichment alleging she and McMahel resided together for a number of years,

      they have one child together, they had a joint bank account until September

      2013, they acquired property together including real property and vehicles, and

      requesting an equitable distribution of the property. McMahel filed a

      counterclaim for trespass and conversion.


[4]   On August 20, 2015, the court held a hearing at which the parties presented

      testimony and documentary evidence. Deaton called McMahel as a witness

      and asked when he and Deaton began residing together, and McMahel replied

      that “[t]o be honest from April 9th she would not leave,” that “I never asked

      her to come to my home, ever,” and that “[s]he never left.” Transcript at 49.

      McMahel testified that Deaton moved around, and when asked how often she

      left, he replied “[a]t least half the time but would not stay gone. She would


      Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 2 of 22
      come back.” Id. at 51. When asked when Deaton’s name was added to his

      account at Hoosier Hills Credit Union, McMahel replied he did not know the

      exact date but probably 2008 or 2009. When asked how long he was in a

      relationship with Deaton, McMahel replied “[p]robably never,” and when

      asked what he called it, he answered “[a] mistake.” Id. at 53. McMahel

      testified that he worked for Essex, the plant closed in 2003, he received a

      severance, he was unemployed for one year and received unemployment

      benefits, and that he worked for Production Heating and Cooling from 2004

      until 2009, when he became disabled. He testified that he purchased a home on

      Sandyhook Road at an auction in 2002 and the closing occurred in 2003, that

      Deaton was present during the auction, and that they probably discussed the

      purchase but did not discuss the finances.


[5]   Deaton testified that she was in a relationship with McMahel from April 1996

      until February 2014 and that they resided together during that time. She

      testified they did everything as a family, made purchases together, and took

      vacations. She stated that, when she first moved in with McMahel, he was

      living on Hudleson Street and that he had purchased the residence the previous

      month, that their son was born in 1998, and that she, McMahel, and their son

      moved to the Sandyhook Road residence. She also testified that, around

      Christmas time of 1997 or 1998, she and McMahel purchased a living room

      suite and that her sister co-signed a loan to help McMahel establish his credit

      after he filed for bankruptcy. She also testified that she and McMahel




      Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 3 of 22
      purchased a truck that he drove and a car as her main transportation and that

      they made these decisions together.


[6]   With respect to her earnings, Deaton testified that she began working at

      Hoosier Uplands in August of 1998, her salary in 2000 was about $14,000 and

      gradually increased, and that she earned just under $19,000 in 2013. She stated

      that she worked from August through May, was off in the summers, received

      unemployment benefits, and that her income was deposited into the joint

      account with McMahel. When asked when the joint account was created,

      Deaton responded that McMahel already had the account in his name and then

      they added her name and that she was “pretty sure” that occurred before her

      son was born. Id. at 69. The court admitted into evidence certain tax and

      employment documents showing that Deaton earned wages of approximately

      $2,919 in 1998; $13,719 in 2000; $14,261 in 2001; $15,637 in 2002; $18,131 in

      2003; $15,990 in 2004, $16,403 in 2005; $18,263 in 2006; $17,053 in 2007;

      $18,870 in 2011; $15,727 in 2012; and $18,755 in 2013.


[7]   Deaton presented bank statements of McMahel and Deaton from Hoosier Hills

      Credit Union for July of 2005 through July of 2013, into which the parties

      made deposits and later direct deposits from Hoosier Uplands and social

      security. Deaton testified that she and McMahel paid all of the bills and made

      all of their purchases from the checking account, including utilities, household

      items, groceries, insurance, and medical expenses. She also testified that the

      money for purchasing vehicles and four-wheelers came from the joint account

      and that the only debt was the home mortgage.

      Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 4 of 22
[8]   Deaton also presented an itemized list of assets showing a value for each based

      upon an appraisal, statement, guide, or personal belief, including a house,

      Deaton’s 401(k), McMahel’s IRA and savings, a 1996 Chevy, a Subaru

      Tribeca,1 a 2009 Harley Davidson, an ATV, a Genesis Boat, a 1998 Suzuki dirt

      bike, a 2001 Honda EX, two 4-wheelers, two trailers, a golf cart, and two riding

      mowers. She presented print-outs of guides from the National Automobile

      Dealers Association regarding the value of the 1996 Chevy, the Subaru, the

      2009 Harley Davidson, the ATV, the 1998 Suzuki, one of the 4-wheelers, and

      the 2001 Honda. Deaton also presented Hoosier Hills bank statements for

      2014, and the statement for the period of February 1, 2014, through February

      28, 2014, the month in which the parties’ relationship ended, showed an IRA

      with a previous balance of $13,671.58, and a mortgage loan with a previous

      balance of $8,300.21. Deaton testified that McMahel had her name taken off of

      the account near the end of 2013.


[9]   Deaton further testified that McMahel opened the IRA in 2003 and had rolled

      over funds from a 401(k) into the IRA. When asked if the IRA had about seven

      thousand dollars at the time, she answered that she was unsure. 2 She also

      stated that she worked for Hoosier Uplands for several years before she signed

      up for her retirement account and that she started working there after she began




      1
       Deaton’s list of assets includes a 1998 Subaru Tribeca, and the value guide she submitted relates to a 2008
      Subaru Tribeca.
      2
       The earliest statement from Hoosier Hills in the record is for the period of July 1, 2005, through August 1,
      2005, and indicates that the IRA’s previous balance was $7,081.91.

      Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016                       Page 5 of 22
       her relationship with McMahel. She presented a statement from her 401(k)

       showing it had a value of $28,521.37 on January 1, 2014. She presented an

       appraisal report dated March 23, 2015, for the residence on Sandyhook Road

       which stated that the value by a sales comparison approach was $105,000.


[10]   Deaton testified that she owned some property together with her sister that they

       had received from their parents, that likewise McMahel owned some property

       with his father, there were no joint efforts to acquire them, and those properties

       should be set aside. She testified that $4,100 was spent from her joint account

       with McMahel toward the construction of a garage on the property owned by

       McMahel and his father but that she was not including that in her list of assets

       to be divided. She testified that McMahel’s earnings were probably higher than

       her earnings, that she kept the home, she was the person who cleaned the

       gutters, painted the house, cleaned the toilets, and cooked, and that she was

       their son’s primary caretaker.


[11]   McMahel presented evidence that he received proceeds of $7,333.34 from the

       sale of real estate in October 2002 and testified that he had “sold ten (10) acres

       of [his] grandpa’s property that actually paid for the down payment” on the

       Sandyhook Road property. Id. at 130. He testified that he took a mortgage

       with Hoosier Hills to finance the remaining portion of the purchase price and

       presented a mortgage dated February 7, 2013, identifying him as the borrower

       and securing a promissory note in favor of Hoosier Hills in the original amount




       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 6 of 22
       of $59,400.3 He also testified that he gave a cashier’s check of $20,900 to a car

       dealership when the Subaru was purchased and that he received the money

       from back pay for disability.4 He testified that he received disability benefits of

       $1,630 per month, and that he earned around $40,000 per year when he worked

       for Essex, that he earned about $65,000 per year at Production Heating and

       Cooling, and that in his final year of working he earned $67,500 “counting

       everything.” Id. at 146. With respect to the IRA, McMahel testified that he

       had “an account with Essex before [Deaton],” id. at 147, that he transferred the

       funds to an IRA after his employment with Essex ended, and that he has not

       contributed to the IRA since then.5 On cross-examination, McMahel indicated

       that the mortgage payments were made from the Hoosier Hills account, and

       that his salary of $67,500 included his vehicle, that he was hired at a rate of

       around $16.75 per hour, and that he received a commission check as well.


[12]   Following the hearing, the parties submitted proposed findings of fact and

       conclusions, and on December 11, 2015, the court entered its findings and

       conclusions, awarded certain property to Deaton, and ordered McMahel to pay




       3
        Deaton testified that McMahel purchased the Hudleson Street residence the month before she moved there.
       McMahel does not point to evidence regarding any equity he may have had in that residence when he and
       Deaton began their cohabitation.
       4
        McMahel presented a copy of the cashier’s check issued by Hoosier Hills dated June 29, 2011. The Hoosier
       Hills statement for the period of June 1, 2011, through June 30, 2011, shows a deposit of $22,516 on June 9,
       2011, and a withdrawal by check of $20,900 on June 29, 2011.
       5
         McMahel testified he worked for Essex until 2003. He does not point to testimony regarding when he
       started working for Essex or when and the extent to which he or his employer made contributions to his
       retirement account while he was employed there.

       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016                     Page 7 of 22
Deaton the sum of $13,102.30. The court’s findings of fact and conclusions

state in part:


                                         Findings of Fact
        1.       There is agreement, by the Parties, that they met in April
                 of 1996, and entered into a relationship. They began living
                 together (co-habitation) almost immediately. They resided
                 together, in the house owned by Mr. McMahel.
                                               *****
        4.       Plaintiff Deaton, during the term of co-habitation earned
                 from $13,000 to $18,000 per year. Her work was irregular
                 and sometimes seasonal, depending on the needs of
                 services provided by Hoosier Uplands . . . .
                 Defendant McMahel, during the tenure of the relationship
                 earned from his employment $40,000 to $67,000 per year.
                 His employment options and opportunities are severely
                 limited due to complications arising from multiple
                 sclerosis. He now receives disability benefits of
                 (approximately) $1,600 per month.
                                               *****
        6.       However the Parties choose to define their physical and
                 psychological relationship they lived in at least two
                 residences together, they purchased vehicles, furniture and
                 residential accouterments and they became parents to a
                 son.
        7.       Factually, the Parties presented a family unit. They shared
                 a home, they parented a child, they purchased vehicles and
                 they traveled together.
        8.       At some point in time (the exact time is in dispute) the
                 parties began to comingle their assets. They established
                 and maintained a joint checking account. Ms. Deaton
                 claims that arrangement began in 1997. Mr. McMahel
                 estimates that arrangement began some time around 2005.

Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 8 of 22
                 During this period of their co-habitation there were assets
                 purchased - some jointly - some in their individual names
                 and some for mutual use in the house where the three lived
                 as a unit.
        9.       There are titles to automobiles purchased in joint names.
                 There are titles to vehicles in one name only.
        10.      It is a fact that bank accounts were held in joint and that
                 both [Deaton] and [McMahel] deposited money into that
                 account. Funds were comingled in an account that existed
                 for a significant period of time. (Ten years being the lesser
                 estimate - seventeen years being the higher) There is a
                 dispute as to when the co-mingling started and when it
                 ended - but the fact remains that the joint account existed
                 and it could have only occurred by active and willing
                 participation of both parties.
                 The money in the joint account was used to fund the co-
                 habitation, to support their lifestyle and to provide for their
                 child.
                 Those funds were accessible to both parties equally,
                 without limit.
                 The use of those funds enured to the benefit of both
                 parties.
        11.      That the parties resided in [McMahel’s] home that he had
                 acquired prior to the parties’ relationship. In 2002
                 [McMahel] purchased his current home at auction. Said
                 real estate was deeded solely into [McMahel’s] name, and
                 [McMahel’s] name was the only one listed on the
                 mortgage and note for said real estate, as evidenced by
                 Defendant’s Exhibit B and Exhibit D.
                 That [McMahel] contributed $7,333.00 towards the
                 purchase of the real estate in 2002 through funds received
                 through an estate for his grandfather, as evidenced by
                 Defendant’s Exhibit A and Exhibit C.



Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 9 of 22
                 That payments towards the note and mortgage for the real
                 estate were withdrawn from the parties’ joint account
                 through Hoosier Hills Credit Union, in which both parties’
                 income was deposited from at least August, 2005 to June,
                 2013.
        12.      The real estate appraised for $105,000 (March 2015) with a
                 mortgage balance of $8,300 remaining unpaid.
        13.      The courts . . . have determined that a party who co-
                 habitates with another person, without subsequent
                 marriage, is entitled to relief upon a showing of an express
                 contract or a viable equitable theory such as implied
                 contract or unjust enrichment.
                 There are no claims that any express contract exists.
                 The Court here finds that sufficient evidence was
                 presented at the hearing to support an equitable claim for
                 recovery. See Bright v Kuehl, 650 [N.E.2d] 311, 315 ([Ind.
                 Ct.] App. 1995 (reh’g denied))[.]
        14.      Clearly, the evidence presented at the hearing showed that
                 Deaton made economic contribution to the co-habitation.
                 Decidedly, those contributions [] made by Deaton were
                 not equal, and although Deaton benefitted significantly
                 from the resources provided by McMahel[,] McMahel
                 would be unjustly enriched if the court took the position
                 that Deaton had no claim whatsoever to any of the assets
                 held in McMahel’s name alone, or to the growth in
                 McMahel’s asset base, that occurred during the years of
                 their co-habitation.
                 Principles of equity prohibit unjust enrichment of a party
                 who accepts unrequested benefits that another person
                 provides, despite having the opportunity to decline those
                 benefits.
                 Deaton has presented evidence of a long term co-
                 habitation and that to some extent McMahel was unjustly
                 enriched thereby. They were together for almost nineteen

Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 10 of 22
                 years. During which time they parented a child, went
                 places and bought things that were paid from their joint
                 efforts. Funds were expended from their joint bank
                 account.
                                               *****
        16.      There are individual retirement accounts held in the
                 separate names of the parties. It is determined that there
                 were no agreements, no intention of the parties to co-
                 mingle or jointly claim those individual accounts. . . .
                                               *****
        20.      During their intimate tenure they acquired property and
                 possessions. Some they held in joint, some were Deaton’s
                 exclusively. Some of the acquired possessions and
                 property were/are exclusively McMahel’s.
                                               *****
        22.      McMahel became disabled due to complications from
                 Multiple Sclerosis. Since his disability (in 2009) his
                 earning capacity decreased from approximately $67,000 a
                 year to $1,600 per month through disability services
                 (approximately $19,200.00 per year). His earning ability is
                 severely and permanently impaired.
                                               *****
                                      Conclusions of Law
        1.       The Parties lived together, created a life as a family unit
                 and parented a child during their 19 years of co-habitation;
        2.       There has been sufficient evidence of the co-habitation and
                 the co-mingling of assets to cause the Court to recognize
                 equitable remedy under the unjust enrichment criteria;
        3.       The earning capacity of McMahel has drastically
                 diminished. Deaton’s earning capacity is reasonably
                 unaffected and remains stable depending on her initiative
                 and work ethic;


Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 11 of 22
           4.        [Deaton] presents a statement of assets with her calculated
                     valuations. The home was appraised and that value is
                     accepted without demur.
                     The other itemized assets and [Deaton’s] valuations are as
                     follows: (motor vehicles valuation by NADA estimate)


                                       ASSET                          VALUE
                              House                                   $105,000
                              Deaton 401(k)                           28,521
                              McMahel IRA                             13,672
                              ‘96 Chevy 1500                          3,250 joint title
                              ‘98 Subaru Tribeca                      9,500 joint title
                              2009 Harley Davidson                    12,000
                              2001 E-Ton ATV                          500
                              Genesis Boat                            9,000
                              1998 Suzuki dirt bike                   900
                              2001 Kawas[a]ki 4 wheeler               13,000[6]
                              2001 Honda Ex                           400
                              2009 125 - 4 wheeler                    2,000
                              1999 ASM car Trailer                    500 joint title
                              1995 enclosed Trailer                   500
                              Golf cart                               1,000
                              John Deere Law[n] Mower                 1,000
                              MTD Lawn Mower                          400




6
    The value submitted on Deaton’s list for this asset is $1,300.


Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016               Page 12 of 22
                                                                  182,511 gross estate[7]
                                                   *****
           7.       It is evident that during this period of cohabitation Mr.
                    McMahel was the beneficiary of Ms. Deaton’s affections,
                    labors and economic contributions. It is also evident that
                    based on Ms. Deaton’s earnings and economic situation
                    that she benefitted from this relationship as well, beyond
                    her means. She was provided a home, transportation,
                    stability and a standard of living beyond her financial
                    means. She received a significant benefit from this
                    association.
           8.       Mr. McMahel shall retain the residence and have sole
                    ownership of the realty located on Sandyhook Road.
           9.       Deaton shall be awarded property as follows:
                                       Asset                               Value
                              1998 Subaru Tribeca                          9,500
                              2009 125 4 wheeler                           2,000
                              1999 ASM Trailer                             500
                              MTD Lawn Mower                               500
                              1998 Suzuki dirt bike                        900
                              Deaton 401K                                  28,251[8]
                                                                           $41,651.02
                    McMahel Equalization payment to Deaton                           $13,102.30
                    Total Award to Deaton                                  $54,723.30[9]




7
 The sum of these amounts, including a positive value of $1,300 for the 2001 Kawasaki and a negative value
of $8,300 attributable to the home mortgage, is $181,143.
8
    In paragraph 4 of its conclusions, the court stated the value of Deaton’s 401(k) as $28,521.
9
    The addition of $41,651.02 and $13,102.30 is $54,753.32.


Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016                        Page 13 of 22
       Appellant’s Appendix at 7-19.


                                                     Discussion

[13]   The issue is whether the trial court’s December 11, 2015 order is clearly

       erroneous. When a trial court enters findings of fact and conclusions thereon,

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

       control as to the issues upon which there are no findings. Yanoff v. Muncy, 688

       N.E.2d 1259, 1262 (Ind. 1997). A general judgment entered with findings will

       be affirmed if it can be sustained on any legal theory supported by the evidence.

       Id. When a court has made special findings of fact, an appellate court reviews

       sufficiency of the evidence using a two-step process. Id. First, it must

       determine whether the evidence supports the trial court’s findings of fact, and

       second it must determine whether those findings of fact support the trial court’s

       conclusions. Id. Findings will be set aside only if they are clearly erroneous.

       Id. Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference. Id. In order to determine that a

       finding or conclusion is clearly erroneous, an appellate court’s review of the

       evidence must leave it with the firm conviction that a mistake has been made.

       Id.


[14]   McMahel requests this court to reconsider the holding in Bright v. Kuehl, 650

       N.E.2d 311 (Ind. Ct. App. 1995), reh’g denied, regarding the equitable remedies

       that may be invoked in disputes between formerly cohabiting couples who

       never married and that an express agreement should be required before dividing

       the property acquired by unmarried, formerly cohabiting couples. He asserts
       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 14 of 22
       that certain agreements and relationships are so difficult to delineate that they

       should be written down. McMahel next contends that there is no evidence that

       he was unjustly enriched by his cohabitation with Deaton or that there was an

       implied contract between the parties and therefore the court’s judgment is

       clearly erroneous. He argues the court never found that he received any greater

       benefit from Deaton than Deaton received from him, that he and Deaton

       commingled funds but there is no evidence that either of them expected that

       their money would be returned, that there is no evidence he and Deaton left the

       relationship in wildly unequal financial positions, and that Deaton left with a

       larger retirement savings than him. He argues that “[t]he problem here is that

       the case was treated like a divorce,” that “[a]ll parties involved seemed to

       assume that there should be a division of assets in keeping with the income of

       the parties,” and that “this approach completely ignored the assets brought to

       the relationship and the reciprocal financial and emotional benefits enjoyed

       during the relationship.” Id. at 14-15.


[15]   Deaton contends that McMahel has waived his arguments because he failed to

       raise them before the trial court and that he had accepted, at the hearing below

       and in his proposed findings and conclusions, that Bright was applicable and

       that the trial court intended to apply that case. Deaton further argues that the

       doctrine of stare decisis prohibits overturning Bright, that McMahel is asking for

       twenty-year-old precedent to be overturned, that “many Hoosiers—including

       both McMahel (by his own admission) and Deaton—have relied on the holding

       in Bright to settle disputes arising from the breakups of their non-marital


       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 15 of 22
       relationships,” that “[t]o yank the rug out from under that understanding, as

       McMahel urges, would seriously unsettle the state of the law in this area,” and

       that “[t]herefore, this Court should be very reluctant to reconsider Bright.”

       Appellee’s Brief at 20-21.


[16]   In addition, Deaton maintains that there is ample evidence to support the relief

       ordered by the court and that the court’s equitable relief in her favor is actually

       very modest in comparison to the parties’ total assets.


[17]   In Bright v. Kuehl, this court addressed whether a party is entitled to relief based

       upon contributions during cohabitation without subsequent marriage absent an

       express agreement. 650 N.E.2d at 314. The court first discussed the case of

       Glasgo v. Glasgo, where a former wife sued her former husband for one-half of

       the assets accumulated during their period of cohabitation after their divorce

       and the trial court awarded the former wife a share of the property. Id. (citing

       Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980), reh’g denied). The former

       husband argued on appeal that claims by nonmarried cohabitants were against

       public policy in Indiana because common law marriages were prohibited, and

       this court affirmed the trial court’s decision and expressly stated that granting

       the petitioner relief was not against the public policy of this state and that

       recovery for parties seeking relief “would be based only upon legally viable

       contractual and/or equitable grounds which the parties could establish

       according to their own particular circumstances.” Id. (citing Glasgo, 410 N.E.2d

       at 1331). The court in Bright then discussed the case of Chestnut v. Chestnut, in

       which this court approved the rationale in Glasgo and affirmed the trial court’s

       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 16 of 22
       decision to include the wife’s contributions during premarital cohabitation in

       the distribution of marital property upon dissolution. Id. at 314-315 (citing

       Chestnut, 499 N.E.2d 783 (Ind. Ct. App. 1986)). Finally, the court in Bright

       noted that other jurisdictions have adopted this right to relief and have held that

       unmarried couples may raise equitable claims such as implied contract and

       unjust enrichment following the termination of their relationships where one of

       the parties attempts to retain an unreasonable amount of the property acquired

       through the efforts of both. Id. at 315 (citing cases from California,

       Connecticut, Minnesota, Nevada, North Carolina, Pennsylvania, and

       Wisconsin).


[18]   Following this discussion, we held in Bright that “a party who cohabitates with

       another without subsequent marriage is entitled to relief upon a showing of an

       express contract or a viable equitable theory such as an implied contract or

       unjust enrichment.” Id. We specifically held that, “[t]o recover under the

       theory of implied contract, the plaintiff is usually required to establish that the

       defendant impliedly or expressly requested the benefits conferred” and that

       “[a]ny benefit, commonly the subject of pecuniary compensation, which one,

       not intending it as a gift, confers upon another who accepts it, is an adequate

       foundation for a legally implied or created promise to render back its value.”

       Id. (citations omitted). We further held that, “[t]o prevail on a claim for unjust

       enrichment, a plaintiff must establish that a measurable benefit has been

       conferred on the defendant under such circumstances that the defendant’s

       retention of the benefit without payment would be unjust” and that


       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 17 of 22
       “[p]rinciples of equity prohibit unjust enrichment of a party who accepts the

       unrequested benefits another provides despite having the opportunity to decline

       those benefits.” Id. at 316 (footnote and citations omitted). See also Sclamberg v.

       Sclamberg, 220 Ind. 209, 212-215, 41 N.E.2d 801, 802-803 (1942) (holding that

       although the purported marriage was void, the court could settle the property

       rights acquired during the “marriage relation”).


[19]   In Turner v. Freed, the trial court ordered Danny Turner to pay Angela Freed

       $18,000 under a theory of unjust enrichment. 792 N.E.2d 947, 949 (Ind. Ct.

       App. 2003). Specifically, the trial court found that, “[a]lthough the relationship

       provided a home, resources, and some financial security to [Freed] for a

       number of years, it is also important to acknowledge that [Turner] received

       some modest benefit from food, clothing, and other financial contributions

       made by [Freed] and that he received substantial benefit from her homemaking and

       housekeeping responsibilities.” Id. at 950. The trial court further found that,

       “[a]lthough [Turner’s] economic contribution to the joint household exceeded

       [Freed’s], and although [Freed] benefit[ed] significantly from the resources

       provided by [Turner], he would be unjustly enriched if the Court took the

       position that [Freed] had no claim whatsoever to significant assets which are

       held in [Turner’s] name alone, or the growth in his asset base that occurred

       during the years of their cohabitation.” Id. On appeal, Turner argued the court

       erred in finding that he had been unjustly enriched by Freed’s domestic services.

       Id. at 649.




       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 18 of 22
[20]   In addressing Turner’s argument, we first observed that we had already

       determined that a party who cohabites with another person without subsequent

       marriage is entitled to relief upon a showing of an express contract or a viable

       equitable theory such as an implied contract or unjust enrichment. Id. at 950

       (citing Bright, 650 N.E.2d at 315). We held that Freed presented evidence to

       demonstrate that Turner was unjustly enriched. Id. In support of our

       conclusion, we noted that Turner and Freed lived together for about ten years;

       that during that time Freed took care of their child and at times Turner’s child

       from a previous relationship; that Freed regularly maintained the home and

       contributed financially by performing one of Turner’s daily newspaper delivery

       routes; that while Freed took care of the children and the home, Turner had the

       time to develop his business; and that Turner purchased a home and furnishings

       from the income generated through his employment. Id.


[21]   We held that, “[a]lthough it is true that Freed benefited from the resources and

       home provided her by Turner, we also agree with the trial court that Turner

       substantially benefited from the services Freed provided and that Turner would

       be unjustly enriched if Freed were awarded no part of the value of the assets

       Turner acquired in his name alone during their cohabitation” and that,

       “[a]ccordingly, we conclude there is evidence to support the trial court’s finding

       that Turner had been unjustly enriched.” Id. at 950-951. We also noted that,

       because we found support for the trial court’s decision under the theory of

       unjust enrichment, we did not need to not address Turner’s implied contract

       arguments. Id. at 950 n.2. See also Neibert v. Perdomo, 54 N.E.3d 1046, 1051-


       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 19 of 22
       1052 (Ind. Ct. App. 2016) (stating that the cases of Glasgo and Chestnut allowed

       recovery for cohabiting couples who cohabited either before marriage or after

       divorce, that later Bright expressly eliminated the exclusion from relief for

       couples who cohabit without ever marrying, that thereafter Turner granted

       equitable relief where parties cohabited without marriage, and that the

       cohabitation relationship is important to the extent that it provides evidence of

       the couple’s relative expectations); Putz v. Allie, 785 N.E.2d 577, 580 (Ind. Ct.

       App. 2003) (observing the holding in Bright), trans. denied.


[22]   Based on our previous decisions and the reasons for those decisions, we decline

       McMahel’s invitation to reconsider the holding in Bright or other cases

       regarding the equitable remedies available to Indiana courts in addressing

       claims by formerly cohabiting persons based upon the theories of implied

       contract and unjust enrichment.


[23]   Turning to the evidence presented in this case, the record reveals that Deaton

       moved in with McMahel in 1996, that the parties had a child together in 1998,

       and that their relationship ended in 2014. The parties presented evidence of

       their incomes, other resources, and the value of the assets accumulated during

       the period of their cohabitation. The evidence establishes that the parties made

       deposits from their respective earnings from employment or other resources into

       an account at Hoosier Hills and that the funds were used to pay the mortgage

       and utility expenses, medical expenses, and other regular and one-time living

       expenses and asset purchases over the period of their cohabitation. The court

       was able to review ten years’ worth of monthly Hoosier Hills statements

       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 20 of 22
       showing the parties’ various deposits into and expenses paid from the checking

       account, the monthly mortgage balance, and the monthly balance in

       McMahel’s IRA. Further, the evidence establishes that the Sandyhook Road

       house purchased in 2003 was financed by a mortgage paid from the Hoosier

       Hills checking account and a down payment using money McMahel received

       the previous year. The court heard testimony that Deaton and McMahel did

       everything as a family and took vacations, that Deaton’s sister co-signed a loan

       to help McMahel establish his credit, and that Deaton cleaned the gutters,

       painted the house, cleaned the toilets, cooked, and was the primary caretaker of

       the parties’ son. The evidence does not indicate that McMahel rejected the

       benefits provided by Deaton or declined to accept her financial or other

       contributions. Evidence in the record supports the trial court’s findings.


[24]   In addition, the trial court found that the value of Deaton’s earnings was thirty

       percent of McMahel’s earnings, and we note that the court awarded Deaton

       assets valued at approximately thirty percent of the parties’ combined assets.

       Thus, the court awarded Deaton a share of the assets accumulated by the

       parties during their cohabitation which was proportionate to her share of the

       parties’ combined income during the same period.


[25]   While Deaton benefited from the resources provided to her by McMahel,

       McMahel also substantially benefited from the monetary and other

       contributions provided by Deaton during their cohabitation of over seventeen

       years. We conclude the evidence supports the trial court’s award of certain

       property to Deaton and its order that McMahel pay Deaton the amount of

       Court of Appeals of Indiana | Opinion 59A04-1601-PL-91 | September 14, 2016   Page 21 of 22
       $13,102.30. See Turner, 792 N.E.2d at 950-951 (concluding that there was

       evidence to support the trial court’s finding that defendant had been unjustly

       enriched).10


                                                      Conclusion

[26]   For the foregoing reasons, we affirm the December 11, 2015 order of the trial

       court.


[27]   Affirmed.


       Baker, J., and May, J., concur.




       10
         Because we find support for the trial court’s decision under the theory of unjust enrichment, we need not
       address the theory of implied contract. See Turner, 792 N.E.2d at 950 n.2.


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