Lisa A. Birkhimer v. Neil S. Birkhimer
2012 Ind. App. LEXIS 636
Ind. Ct. App.2012Background
- Lisa and Neil Birkhimer married in 1992; two daughters; moved to Noblesville, Indiana; Lisa co-owns dealership and real estate holding entities funded by gifts from her father; complex discovery and seven-day final hearing addressing valuation of Lisa’s business interests and asset division; trial court valued assets as of 2005, awarded 67% to Lisa, ordered a cash payment to Neil, and allocated child custody and support
- Lisa filed for legal separation in 2005; dissolution decree issued 2011 with substantial monetary award from Lisa to Neil and child support with a parenting time credit to Lisa
- Parties appealed; trial court adopted Neil’s valuations for Lisa’s business interests and included Lisa’s debt to her father as a duty to be allocated; court also handled custody, support deviations, and post-judgment fees
- On appeal, court remanded for three specific determinations: include Lisa’s $580,000 debt to her father in the marital estate, provide findings for deviations from the Child Support Guidelines, and reallocate parenting time credit to Neil; court also addressed incorporation of settlement and security issues
- Court affirmed the remaining aspects of the decree; remand instructions also covered recalculation of income, CSOW, and timing/clarity on fees
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Inclusion of Lisa’s debt to her father in the marital estate | Birkhimer: debt should be included in marital assets | Birkhimer: trial court failed to reflect debt in the asset chart | Remanded to include debt; division may change accordingly |
| Deviations from Child Support Guidelines and need for findings | Deviations require written findings; Lisa’s income calculation was flawed | Court properly deviated; income should reflect taxes and irregulars | Remand for recalculation of Lisa’s income and written findings supporting any deviations |
| Allocation of parenting time credit (who pays controlled expenses) | Lisa should receive the credit; she pays controlled expenses | Neil should receive parenting time credit; Lisa should pay controlled expenses | Remand to apply parenting time credit to Neil with revised CSOW and Lisa’s recalculated income |
| Incorporation/approval of Partial Settlement Agreement | Language insufficient to bind; must be clearly approved | Language sufficient; incorporation valid | Incorporation found sufficient; no magic language required |
| Security for the monetary award post-decree | Request for security for cash award | General judgment lien suffices; no abuse | No abuse; automatic lien exists; no further security required |
Key Cases Cited
- Hartley v. Hartley, 862 N.E.2d 274 (Ind. Ct. App. 2007) (standard for reviewing dissolution findings of fact)
- Grathwohl v. Garrity, 871 N.E.2d 297 (Ind. Ct. App. 2007) (guidance on valuation and property division)
- Miller v. Miller, 763 N.E.2d 1009 (Ind. Ct. App. 2002) (consideration of equal division and adjustments)
- In re Marriage of Pond, 676 N.E.2d 401 (Ind. Ct. App. 1997) (whether settlement language binds; transplantation of final decree)
- Grace v. Quigg, 150 Ind. App. 599, 276 N.E.2d 379 (Ind. Ct. App. 1971) (binding effect of settlement language in decree)
- Davis, 508 N.E.2d 125, 395 N.E.2d 1254 (Ind. 1987) (Ind.) (security and liens upon money judgments in dissolution)
- Franklin Bank & Trust Co. v. Reed, 508 N.E.2d 1256 (Ind. 1987) (general lien implications for dissolution awards)
- Draime v. Draime, 132 Ind. App. 99, 173 N.E.2d 70 (Ind. Ct. App. 1961) (dissolution decree as to property rights)