      MEMORANDUM DECISION
                                                                   Jun 30 2015, 7:46 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Robert A. Plantz                                         Samantha M. Joslyn
      Robert A. Plantz & Associates, LLC                       Rensselaer, Indiana
      Merrillville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Starla Gough,                                            June 30, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               37A03-1411-DR-414
              v.                                               Appeal from the Jasper Superior
                                                               Court

      Dale Gough,                                              The Honorable Robert M. Hall,
      Appellee-Respondent.                                     Senior Judge

                                                               Cause No. 37D01-1212-DR-1156




      Najam, Judge.


                                         Statement of the Case
[1]   Starla Gough (“Mother”) appeals the dissolution court’s final decree, which

      ended her marriage to Dale Gough (“Father”). Mother presents the following

      issues for our review:


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              1.      Whether the dissolution court abused its discretion when it
                      awarded Father parenting time pursuant to the Indiana
                      Parenting Time Guidelines.

              2.      Whether the dissolution court abused its discretion when it
                      calculated Father’s child support obligation.

              3.      Whether the dissolution court abused its discretion when it
                      divided the marital pot.

              4.      Whether the dissolution court abused its discretion when it
                      denied Mother’s request that Father pay her attorney’s
                      fees.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and Mother married in 1996, and they have three children together:

      W.G., born November 20, 2000; and twins C.G. and L.G., born January 22,

      2003 (collectively “the children”). During the marriage, Father worked full

      time and, after W.G.’s birth, Mother was a stay-at-home mom. In January

      2012, Mother was hospitalized for a serious illness, and, after undergoing three

      surgeries during early 2012, Mother suffered a stroke in June 2012. As a result

      of the stroke, Mother developed various mental and physical impairments.


[4]   On December 13, 2012, Mother filed a petition for dissolution of the marriage.

      Following a hearing, the dissolution court issued a provisional order whereby

      Mother was awarded physical custody of the children; Father was awarded

      parenting time every other weekend, but with “no overnights until further court


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      order”; Father was ordered to pay $475 per week in child support; Father was

      ordered to pay certain “ongoing marital debts and obligations”; and Father was

      ordered to pay $1500 to Mother’s attorney for fees. Appellant’s App. at 19-20.1

      Mother and the children continued to reside in the marital residence, with

      Father paying the mortgage and bills. Father moved in with his fiancée, who

      was living in a one-bedroom apartment.


[5]   At the final hearing in June 2014, Mother testified that, as a result of the stroke

      she suffered in 2012, she is unable to work. Mother presented evidence that she

      is currently seeking employment through a program called IMPACT, which

      helps disabled2 people seek employment. But Mother testified that IMPACT

      has been unsuccessful in finding her work that she is able to do. Still, when

      asked to describe her daily activities, Mother testified that she “do[es] laundry

      and cook[s], clean[s], take[s] care of the dogs, the cats, the birds, the fish tank,

      the kids—help[s] them with their [sic] driving them for their games [and other

      activities].” Tr. at 48. Mother did not testify that she had any difficulty

      completing those tasks. And Mother submitted two child support obligation

      worksheets to the trial court—one worksheet listed her income as zero and the

      second listed her income at minimum wage.




      1
        We note that we had difficulty finding relevant pleadings in the Appendix submitted on appeal because, in
      her table of contents, Mother did not specify the page numbers associated with each pleading.
      2
          Mother has applied for Social Security disability benefits, but she has been denied.


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[6]   Mother did not submit a list of marital assets to the trial court. Father

      submitted a list of personal property that he wanted the trial court to award

      him, but neither party submitted evidence of the value of any of those items. It

      is undisputed that the parties have no equity in the marital residence. The

      evidence shows that Father used to have a 401(k) account, but that account had

      no value as of the final hearing. And the evidence shows that Father has a

      pension through his employment, but neither party presented any evidence

      regarding the value of that pension or whether Father’s interest in the pension

      has vested.


[7]   Following the hearing, the dissolution court took the matter under advisement

      and subsequently issued the decree, which provides in relevant part:

              CUSTODY, SUPPORT AND VISITATION

              As to custody, the court finds the parties should have joint legal
              custody with primary physical possession with Mother subject to
              Father’s rights as provided in the Indiana Parenting Time
              Guidelines, with no restrictions thereon.

              Support is established pursuant to Wife’s Exhibit 4 with Father to
              pay Four Hundred Forty-seven Dollars ($447.00) per week
              commencing on Friday July 11, 2014. . . .

                                                     ***

              PROPERTY:

              The court finds there are no assets of the marriage with any
              value, based on the evidence submitted. The court finds that
              there are debts incurred by the parties during the marriage that

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        need to be determined, including the payment of the debts
        ordered in the Provisional Order. The court finds that the
        marital residence, which has no equity, should be and hereby is
        awarded to Father subject to the debt thereon. Father shall hold
        Mother harmless thereon. Mother has requested and Father has
        agreed that Mother may continue to reside in the marital
        residence. Father shall keep Mother informed as to the status of
        the foreclosure on the marital residence. Absent a court order
        evicting Mother from said residence, of which Father is unaware,
        he shall give her at least thirty (30) days notice of any
        requirement to vacate said residence.

        Father may have a 401k Pension and the evidence discloses that
        there is no value therein for division by the court. The court
        finds that the same should be set over to Father as his sole and
        separate property.

        As to the van that is in possession of Mother, she has had it
        refinanced, it is in her name, and shall be set over to her as her
        sole and separate property subject to the debt thereon. Mother
        shall hold Father harmless on said debt.

        As to the personal property set forth in Husband’s Exhibit C, the
        court finds the tangible property listed thereon, with the
        exception of the thirty-nine (39) inch TV, shall be set over to
        Father and all remaining tangible personal property, including
        the thirty-nine (39) inch TV, shall be set over to Mother. Counsel
        stipulated in open court that they would make arrangements for
        Father to acquire the property set over to him and are to do so.
        All intangible personal property shall remain in the possession of
        whoever currently has any such property in his or her name.

        MARITAL DEBT:

        Father shall be responsible for paying all bills of the marriage,
        specifically including those set forth in the Provisional Order and
        shall hold Mother harmless from any such debts. Further the

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              court notes that Father’s requirement to pay any ongoing bills
              during the pendency of the case pursuant to the Provisional
              Order terminates on the entry of this Decree.

              ATTORNEY FEES:

              The court further finds that each of the parties shall be
              responsible for his or her own attorney fees, except for the
              allowance made in the Provisional Order herein.


      Appellant’s App. at 25-27. Father and Mother filed cross motions to correct

      error, which the dissolution court denied. This appeal ensued.


                                     Discussion and Decision
                                            Standard of Review

[8]   The dissolution court entered findings and conclusions sua sponte. Sua sponte

      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. Mullin v. Mullin, 634

      N.E.2d 1340, 1341 (Ind. Ct. App. 1994). 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. First, it must

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

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

      conclusions of law. Estate of Reasor v. Putnam Cnty., 635 N.E.2d 153, 158 (Ind.

      1994). Findings will only be set aside if they are clearly erroneous. Id.

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


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       support them either directly or by inference. Id. A judgment is clearly

       erroneous if it applies the wrong legal standard to properly found facts. State v.

       Van Cleave, 674 N.E.2d 1293, 1296 (Ind. 1996), reh’g granted on other grounds, 681

       N.E.2d 181 (Ind. 1997). 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. at 1295.


                                        Issue One: Parenting Time

[9]    Mother first contends that the dissolution court abused its discretion when it

       awarded Father parenting time pursuant to the Indiana Parenting Time

       Guidelines (“the Guidelines”). In particular, Mother objects to Father having

       overnight visits with the children. We review a trial court’s determination of a

       parenting time issue for an abuse of discretion. J.M. v. N.M., 844 N.E.2d 590,

       599 (Ind. Ct. App. 2006), trans. denied. No abuse of discretion occurs if there is

       a rational basis in the record supporting the trial court’s determination. Id. We

       will neither reweigh evidence nor judge the credibility of witnesses. Id. In all

       parenting time controversies, courts are required to give foremost consideration

       to the best interests of the child. Id.


[10]   Mother begins by directing us to Indiana Code Section 31-17-4-1(a), which

       provides that a parent who is not granted custody of the child is entitled to

       reasonable parenting time rights unless the court finds, after a hearing, that

       parenting time by the noncustodial parent might endanger the child’s physical

       health or significantly impair the child’s emotional development. Mother

       asserts that Father’s “one bedroom apartment with his girlfriend is not a proper
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       or safe environment, physically or emotionally, for these three small children.”

       Appellant’s Br. at 12. Thus, she maintains that the dissolution court abused its

       discretion when it ordered parenting time under the Guidelines.


[11]   Mother’s contention on this issue is merely a request that we reweigh the

       evidence, which we will not do. Mother supports her argument on appeal with

       her self-serving testimony at the final hearing. The dissolution court was

       entitled to discredit that testimony. Moreover, Father testified that he would

       provide air mattresses and a couch for the children to use when they stayed at

       his residence, and he also testified that he was seeking a new residence with

       more than one bedroom to accommodate the children. Mother has not

       demonstrated that the dissolution court abused its discretion when it awarded

       Father parenting time under the Guidelines, including overnight visits.


                                         Issue Two: Child Support

[12]   Mother next contends that the dissolution court abused its discretion when it

       calculated Father’s child support obligation. In particular, Mother asserts that

       the dissolution court erred when it imputed her income at a minimum-wage

       level. Mother states that, because of her physical disabilities, she is unable to

       work, even at a minimum-wage job. But at the final hearing, Mother submitted

       as Exhibit 4 a child support obligation worksheet that attributed minimum-

       wage income to her. The dissolution court adopted the calculation of Father’s

       child support obligation as indicated on that exhibit. As such, any error was

       invited, and Mother cannot now complain. Balicki v. Balicki, 837 N.E.2d 532,

       541 (Ind. Ct. App. 2005) (reiterating doctrine of invited error is grounded in
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       estoppel and precludes a party from taking advantage of an error that she

       commits, invites, or which is the natural consequence of her own neglect or

       misconduct), trans. denied.


                                          Issue Three: Marital Pot

[13]   Mother appears to raise several issues regarding the marital pot. We address

       each in turn. Mother first contends that the dissolution court abused its

       discretion when it excluded Father’s pension from the marital pot. In an action

       for dissolution of marriage under Indiana Code Section 31-15-2-2, the court

       shall divide the property of the parties, whether:


               (1) owned by either spouse before the marriage;

               (2) acquired by either spouse in his or her own right:

                       (A) after the marriage; and

                       (B) before final separation of the parties; or

               (3) acquired by their joint efforts.


[14]   This statute requires all property to be considered in the marital estate. Fobar v.

       Vonderahe, 771 N.E.2d 57, 60 (Ind. 2002). With certain limited exceptions, the

       “one-pot” theory of Indiana family law specifically prohibits the exclusion of

       any asset from the scope of the trial court’s power to divide and award.

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

       “Only property acquired by an individual spouse after the final separation date

       is excluded from the marital estate.” Id.

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[15]   Here, Mother asserts that Father has a pension and that the dissolution court

       abused its discretion when it excluded that pension from the marital pot. But it

       is well established that, for a pension to be included in the marital pot, the

       pension must be vested. See Ind. Code § 31-9-2-98; Dowden v. Allman, 696

       N.E.2d 456, 458 (Ind. Ct. App. 1998). And neither party presented evidence to

       show that Father’s interest in his pension is vested.3 Absent any evidence that

       Father’s interest in his pension is vested, the trial court appropriately excluded it

       from the marital pot. See Dowden, 696 N.E.2d at 458; see also Grammer v.

       Grammer, 566 N.E.2d 1080, 1083 (Ind. Ct. App. 1991) (holding trial court

       erroneously included the husband’s pension plan in the marital assets where the

       record was not clear that the pension had vested); Livingston v. Livingston, 583

       N.E.2d 1225, 1228 (Ind. Ct. App. 1992) (holding trial court did not err by

       excluding husband’s 401(k) plan from the marital assets where the “evidence

       does not establish unequivocally a vesting or present value of the plan”), trans.

       denied. Therefore, the dissolution court did not err when it excluded from the

       marital pot the value of Father’s pension plan, if any.4


[16]   Next, to the extent Mother contends that the dissolution court erred when it

       found that there are no assets of the marriage with any value, Mother does not

       support that contention with cogent argument, and the issue is waived. Ind.

       Appellate Rule 46(A)(8)(a). Waiver notwithstanding, Mother did not present




       3
           There is no indication that Mother attempted to obtain this crucial information through discovery.
       4
           We also note that neither party presented evidence regarding the value of Father’s pension.


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       evidence showing that the parties had any assets other than items of personal

       property of unknown value discussed at the hearing. And the parties stipulated

       to the division of the bulk of the personal property during the hearing. Because

       Mother did not present any evidence regarding the values of various marital

       assets to the dissolution court, again, any error was invited, and she cannot now

       complain. Balicki, 837 N.E.2d at 541; see also In re Marriage of Church, 424

       N.E.2d 1078, 1081-82 (Ind. Ct. App. 1981) (noting “that any party who fails to

       introduce evidence as to the specific value of the marital property at the

       dissolution hearing is estopped from appealing the distribution on the ground of

       trial court abuse of discretion based on that absence of evidence”).


[17]   Finally, to the extent Mother contends that the dissolution court abused its

       discretion when it “order[ed] an equal division of the parties’ debts,” again, that

       contention is not supported by cogent argument. Appellant’s Br. at 14.

       Regardless, the evidence clearly shows that the dissolution court ordered Father

       to pay the majority of the parties’ marital debts, totaling approximately $20,000,

       and it ordered Mother to pay only the debt associated with her van, which is

       approximately $5,000.5 Thus, the dissolution court did not order an equal

       division of the parties’ debts. This contention is entirely without merit. Mother

       has not demonstrated that the dissolution court abused its discretion when it

       divided the marital pot.




       5
           The evidence does not show the present value of that van, which was awarded to Mother.


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                                        Issue Four: Attorney’s Fees

[18]   Mother contends that the dissolution court abused its discretion when it denied

       her request that Father pay her attorney’s fees. Indiana Code Section 31-15-10-

       1 provides that a trial court may order a party to pay a reasonable amount to

       the other party for the cost of maintaining or defending any action in

       dissolution proceedings. We review a trial court’s award of attorney fees in

       connection with a dissolution decree for an abuse of discretion. Hartley v.

       Hartley, 862 N.E.2d 274, 286 (Ind. Ct. App. 2007). The trial court abuses its

       discretion if its decision is clearly against the logic and effect of the facts and

       circumstances before it. Id. When making such an award, the trial court must

       consider the resources of the parties, their economic condition, the ability of the

       parties to engage in gainful employment and to earn adequate income, and

       other factors that bear on the reasonableness of the award. Id.


[19]   Mother’s sole contention on this issue is that, because she is unable to work and

       Father makes approximately $100,000 per year, the dissolution court should

       have ordered Father to pay her attorney’s fees. But this court has held that,

       “while disparity of income may be considered in awarding attorney[’s] fees, a

       trial court is not required to award fees based on disparity of income alone.”

       Russell v. Russell, 693 N.E.2d 980, 984 (Ind. Ct. App. 1998), trans. denied. There

       is no abuse of discretion for the trial court not to do that which it is not required

       to do. Id.


[20]   Affirmed.


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Baker, J., and Friedlander, J., concur.




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