*1 762
sation should, benefits and therefore, be excluded from the marital assets and ensu- BIZIK, Daniel Appellant-Respondent, ing property division.
Additionally, note, we as did panel Jendreas, this Court in jurisdie- other BIZIK, Appellee-Petitioner. tions have determined that disability pen No. compensate sions for lost future 64A03-0012-CV-451. earnings, thus making separate them property rath Court Appeals of Indiana. er than marital subject assets to distribu tion. e.g., See Gragg v. Gragg, 12 S.W.3d 17, Aug. 412 (Tenn.2000)(disability paid benefits husband under private two disability insur policies
ance operated as income, lost
marital property, even though $45,000.00
in premiums paid were with marital
funds); Fabich, Fabich v. 144 N.H.
744 (1999); A.2d 615 Brewer, Brewer v. Wash.2d 976 P.2d
(1999)(monthly disability payments under
private disability policy insurance consti
tute separate property even though policy
was acquired during marriage and premi
ums paid were from community funds); and, In Re Marriage Peterson, 870 P.2d
630 (Colo.Ct.App.1994). But see John v.
John, 1
Neb.App.
(1993)(husband's disability pension was
properly included marital estate where
analogized personal injury proceeds and
husband was currently employed in differ
ent position). upon
Based the foregoing, we conclude
that the trial court abused its discretion by
finding Nick's disability pension to be a
marital asset and including it in the divi-
sion of the marital property.
Reversed and remanded with instruc-
tions to the trial court to determine the
marital estate and division thereof with the
exclusion of Nick's disability pension.
FRIEDLANDER, J., and BARNES, J.,
concur.
Russell Clarke, T. Jr., Emswiller, Williams, Clarke, Noland & Indianapolis, IN, Attorney for Appellant. Karl L. Mulvaney, Nana Quay-Smith, Bingham Summers Spilman Welsh & LLP, Indianapolis, IN, Steven Langer, Valparai- so, IN, Attorneys for Appellee. OPINION RILEY, Judge.
STATEMENT OF THE CASE Appellant-Respondent, Daniel Bizik ("Dan"), challenges the trial court's divi- September on Separation for Petition spousal award assets sion the dissolution maintenance, upon joint preliminary Appellee-Petitioner, marriage October On par- both issued, precluding ("Brenda"). injunction Bizik obligation or debt incurring any from ties re- reverse part, affirm We obligation or debt create would part. mand injunction party. other disposing party either precluded ISSUES consent without property joint for our issues five raises Dan appeal, On by permission party other follows: restate review, we which court. *4 Executive Dan's finding that Despite 1. a Petition filed 1998, 24, Brenda July On vested, whether was Plan Provision- and Retirement Marriage of Dissolution for Dan's including by erred court trial the Mutual a Joint Subsequently, al Order. Plan Retirement Supplemental entered, Executive restrain- was Restraining Order award- estate, thereby and marital the encum- transferring, from party either ing (70 %) the of percent seventy ing Brenda disposing otherwise concealing, bering, plan. said of value the necessities for except property, joint of the of consent the written life, without of its abused court trial the 2. Whether the of permission or without party, other Brenda pay to ordering Dan by discretion entered thereafter parties The court. trial of amount in the maintenance spousal Janu- on order provisional agreed an into her beyond week, and above per $400.00 trial the with filed 1999, was 16, which ary the marital estate of the share awarded 23, August 3, On 1999. March on court $1,059,044.00. of amount for Petition motion eross 1999, filed a Dan by erred court trial the 3. Whether Marriage. of Dissolution to decision "unilateral Dan's that finding com- hearing 1999, 14, the December On purportedly and estate martial the invade disso- for petitions parties' the on menced the of payment monies certain use re- hearing was The marriage. of lution vio- inwas expenses educational children's 2000, concluded and 27, April on convened Provisional Agreed Court's this of lation 2000, trial 19, the July 3, On May on 110). (R. Order." of Fact, Conclusions of Findings court's erred court trial the 4. Whether entered. were Decree Dissolution and Law marital the set off to claim denying Decree, the Dissolution the to Pursuant for monies $23,000.00, sum in the estate pay shall Dan ordered court trial mother. from received claims he maintenance. per week $400.00 Brenda its abused court trial 5. Whether found trial court support to factors finding discretion valued is estate marital total equal of an presumption from deviation entitled Brenda which to $1,512,920.00, award- division, thereby property marital further trial The $1,059,044.00. to estate. marital of the 70% ing Brenda a deviation evidence supported found equal statutory presumption HISTORY PROCEDURAL AND therefore, FACTS assets, and division of the 70% Brenda awarded on June married were Brenda Dan property to Pursuant the estate. born were children 1968, and two only received distribution, Brenda filed Blaine. Blair marriage, 766
$945,837.52, and therefore, in order ed marital property, we must decide to ef- fectuate a 70% division Brenda, the trial whether the trial court's decision consti court awarded Brenda a judgment in her tutes an abuse of discretion, considering favor against Dan in the amount of only the evidence most favorable to the $113,706.48. Dan now appeals. trial court's disposition of the property, without reweighing the evidence or assess
DISCUSSION AND DECISION
ing the credibility of witnesses. Hodowal
Standard
Hodowal,
Review
(Ind.Ct.
N.E.2d
App.1994),
trans. denied. An abuse of dis
In
case,
the trial court entered
cretion occurs if the trial court's decision is
findings and conclusions pursuant
clearly against
logic
and effect 52(A).
Ind.Trial Rule
On appeal, we will
facts and cireumstances
before
court,
not set aside the findings or judgment
or the reasonable, probable, and actual
unless clearly erroneous, and due regard
deductions to be drawn therefrom. Myers
shall
given
to the opportunity of the
v. Myers, 560
N.E.2d
42 (Ind.1990).
trial court to judge the credibility of the
An abuse of discretion also occurs when
witnesses.
Id. Findings are clearly erro
the trial court has misinterpreted the law
neous when the record contains no facts to
*5
or disregards evidence of factors listed in
support them either directly or by infer
the controlling statute.
Id.
Quillen
ence.
Quillen,
v.
671
98,
N.E.2d
(Ind.1996).
102
The judgment
is clearly
Although the facts and reasonable
erroneous if the findings do not support
inferences might allow for a different con
the conclusions of law or the conclusions of
clusion, we will not substitute our judg
law do not support
the judgment.
Id. ment for that of the trial court. Bartley,
The disposition of marital assets
is within the sound discretion of the trial
§
Ind.Code
31-15-7-4(a) provides that
court.
Chase,
Chase v.
690
753,
N.E.2d
in an action for dissolution of marriage, the
756 (Ind.Ct.App.1998).
"When a party
trial court shall divide the property of the
challenges the trial court's division of mar
parties, regardless of whether it was:
ital property, he must overcome a strong
(1) owned by either spouse before the
presumption that the court considered and
marriage;
complied with the applicable statute, (2) acquired by either spouse in his or
that presumption is one of the strongest
her own right:
presumptions applicable to our consider
(A) after
ation
on appeal."
marriage; and
In re Marriage
Bart
of
ley, 712
N.E.2d
542
(B)
(Ind.Ct.App.1999).
before final separation of the par-
In reviewing a trial court's disposition
ties; or
of
"
assets,
marital
we focus on 'what the
(8) acquired by
joint
their
efforts.
did,
court
not what it could have done.'"
Chase,
767 demonstrating that the of carry his burden [marriage purposes for "Property," Plan Retirement Supplemental Executive means: dissolution] present had no or that he not vested or both party of either assets all the However, the benefits. right to withdraw including: parties, continually held absent has this Court pension (1) to withdraw right pension that a was vest any evidence clear benefits; retirement or pension ed, a court should exclude trial or re- (2) pension to receive right Dowden, pot. See from the plan are not forfeited tirement benefits any that absent (holding at 458 N.E.2d or employment upon termination vested, pension was that the clear evidence (as 411 of in Section defined vested are it excluded appropriately Code) that are but Internal Revenue Grammer pot); see also from the marital mar- the dissolution after payable (Ind. Grammer, 566 N.E.2d riage; and (holding that Ct.App.1991) re- (3) disposable to receive right pen husband's erroneously included the (as in 10 defined pay retainer tired or assets where the marital plan sion 1408(a)) mar- during the acquired U.S.C. has pension that the was not clear record after the payable may riage that is vested). Therefore, argument Brenda's marriage. dissolution to demonstrate Dan's burden that it was Retire, our Therefore, section of because Supplemental Executive that his permits Act Marriage Dissolution sup simply is not vested ment was interests pension-type of certain inclusion by the case law. ported division, must we pot in the to include in order Sup- Dan's Executive determine whether *6 property, as marital benefits pension "property" is Plan Retirement plemental at the termi not forfeited must benefits categories any of the falls within that must employment or benefits nation of § 31-9-2-98. Ind.Code before or payable either be vested court erred that the trial argues Dan Hodowal, 627 the dissolution. after Re- Supplemental Executive including his Nevertheless, the evidence at 869. N.E.2d for divi- pot in the marital Plan tirement court's determi the trial support not does contends that Dan Specifically, sion. Ex 70% of Dan's Brenda nation to award an Brenda improperly awarded Plan, Retirement Supplemental ecutive that he had income in his future interest Plan that found specifically it when not and was to withdraw right no in direct Specifically, not vested. vested. examination, as follows: Dan testified hand, then ac Okay. And Brenda the other Q counsel] On [Dan's prop all marital although knowledges that execu- sort of is some was-there there division, pot for the marital erty goes Farm, into there not? is plan tive as State at the interest a vested with only property | Yes. [Dan] as a divided may be of dissolution time today? You die © Allman, 696 Dowden v. asset. marital |p it. get Don't Nev (Ind.Ct.App.1998). N.E.2d today? you quit If Okay. © Dan failed to ertheless, claims that Brenda it. get > Don't that an proving his burden overcome Last do what? have to Okay. You pot. Spe the marital exempt from asset & age 657 until Dan failed to argues Brenda cifically, Well, A you have to retire at an accept- and remand for the trial court to divide the age able in that job job [sic] or a marital assets accordance with our opin- level above to receive the executive sup- ion. plemental. Spousal II. Maintenance Q Is you there-do have any idea what Next, argues Dan the trial court that is? What that's worth? abused its discretion ordering him to |> No. pay spousal Brenda maintenance They you don't tell that? © amount of per week, $400.00 above and
|p No. beyond her awarded share of the marital They just you tell it's out there? estate. Specifically, © Dan contends that since > Yes. was awarded 70% of the total estate, amounting $1,059,044.00, (R. 400-401). Brenda is self-sufficient as a result of the However, on eross-examination, Bren- distribution, therefore, it was da's counsel did question Dan with unnecessary for the trial court to order a respect to the non-vested status of his spousal maintenance award in the amount Plan, Executive Supplemental spe- and she per $400.00 week. Consequently, Dan cifically delineated Dan's Sup- Executive claims that because Brenda was awarded plemental Plan as "Not vested" in her sufficient marital assets provide for the Proposed Findings of Fact and Conclu- discrepancy between her ability to earn (R. 75). sions of Law. money and her expenses, Brenda's ability judge delineated Dan's Executive to be self-sufficient is not materially affect- Supplemental Plan as "Not vested" in his ed. Essentially, Dan asserts that Brenda Fact, Findings of Conclusions of Law and is self-sufficient as a result of the interest (R. 108). Dissolution Decree. generated from the marital assets she re- Therefore, the evidence reveals that ceived from the distribution and her Supplemental Executive Plan is not $10,000.00 per year earning capacity, pension or retirement plan that Dan has therefore, spousal maintenance award is a present vested right from which to with- clearly erroneous. fact, draw benefits. In Dan testified that *7 81-15-7-2(1) § Indiana Code provides: if he dies or retires before an acceptable If the court spouse finds a retirement to age, physi- he be is not entitled to the cally or mentally incapacitated benefits from the to Plan. the extent that ability the incapacitat- the sum, In because Dan did not qualify for spouse ed to support himself or herself this any benefit at time during the mar- is materially affected, the court may find riage, and the Executive Supplemental that maintenance for spouse the is nec- Plan is an earning benefit contingent upon essary during period the of incapacity, Dan's continuation of employment until re- subject to further order of the court. tirement at an acceptable age, we conclude that Dan's Executive Supplemental Plan is The trial court may make an not an asset as defined § Ind.Code 81- award of spousal upon maintenance the 9-2-98. We conclude that the trial court finding that a spouse's self-supporting abil improperly included Dan's Executive Sup- ity is materially impaired. Fuehrer v. plemental Plan as an asset in the Fuehrer, (Ind.Ct. 651 N.E.2d 1174 pot division, for therefore we reverse the App.1995), denied, reh'g trans. denied. trial court's determination issue, The trial court's power to make an award on this
769 in full force maintain for and shall sible its discre wholly within is maintenance through expense at his sole and effect the only when reverse tion, we will and COBRA, insur- health via employer, and logic clearly against is decision policy shall Said coverage ance Wife. of the circumstances and the facts effect in now force coverages for the same trial court However, if a even Id. case. present Husband's under and effect materially incapacity spouse's that a finds shall Husband policy. health insurance a main ability, self-supportive her affects diminish, to reduce, anything re mandatory. In or do not award is tenance would de- coverage that affect Wife's Richmond, 605 N.E.2d Marriage of health way limit her any in Nevertheless, in crease or (Ind.Ct.App.1992). Further, Husband coverage. insurance has trial court a whether determining and reasonable pay all of Wife's shall mainte spousal in a its discretion abused medi- covered necessary non-insurance pre determination, court will nance dental, psychologi- cal, optical, consid properly hospital, court the trial that sume ex- pharmaceutical prescription in cal and statutory factors applicable ered further court order. Moore, penses pending Moore its decision. reaching The (Ind.Ct.App.1998). 1004, 1007 N.E.2d (R. 122). correctly
presumption case, evidence In the an award making law applied trial to the most favorable light in the strong is one maintenance spousal that, April reveals judgment court's the consid to applicable presumptions est Short, M.D., a Board Cheryl Dr. Fuehrer, 651 appeal. case on of a eration Obstetrician, Brenda diagnosed Certified 1174. N.E.2d at cancer and endometrial having both under maintenance spousal To award 27, 1999, Bren April On cancer. ovarian 31-15-7-2(1), trial court § Ind.Code in hysterectomy a underwent da determination make a threshold first must cervix, uterus, both of her removal volved mentally (1) physically is spouse tubes, dissection and ovaries, fallopian (2) materi incapacity incapacitated surgery The lymph nodes. pelvic of both self-supportive spouse's ally affects me surgical undergo a caused finds that a If ability. cancer, result of and as nopause, has the it then incapacitated, spouse estrogen to take normal Brenda is unable Mar maintenance. to award discretion Therefore, medication. replacement Richmond, 605 N.E.2d riage sweats, flashes, night hot Brenda suffers limited to determin Therefore, task is our dysfunction. cognitive dryness, vaginal evidence there is sufficient ing whether she deposition, Moreover, in Dr. Short's judgment. the trial court's support dysfunction cognitive that Brenda's stated *8 loss, forgetfulness, De- memory Dissolution Here, to the pursuant resulted concentration, suf well as as decrease that: ordered cree, trial court her control inability to an fering from the sum pay Wife shall 6. Husband physician, treating As Brenda's emotions. mainte- and for per week $400.00 de Brenda recommended Dr. Short the Clerk through the Office nance twenty hours hours her work crease only and Superior Court the Porter incapaci indefinitely, due per week Husband Office. through the Clerk's her consequence as a ty she suffers any pay- credit for any not receive shall Furthermore, Of- through the Clerk's treatment. made cancer ments not an examina- underwent request, respon- Further, shall be Husband fice. tion testing by Durak, Dr. Gary which their children's education during pen- supported Brenda's claim that she suffers dency of this divorce proceeding. Specifi- physical from incapacities mental and/or cally, Dan challenges the trial court's Find- that materially affect her ability to sup- ings 26, 38, number and 39. In particular, port herself. Specifically, Dr. Durak's these Findings state as follows: medical report stated that Brenda is func- 26. Husband's Use of Money. Marital tioning at than less what her intellectual Wife claims that Husband withdrew cer- capacities predict. would Moreover, Dr. tain marital monies from various bank Durak confirmed that Brenda suffers from accounts without her knowledge and depression and also recommended that consent, diverted monies from the mari- she limit her work hours to twenty hours tal estate and used marital monies for per week as a result of the impairment purposes unrelated to the marriage. cognitive her processing by both memo- Wife claims during the pendency of ry/concentration impairment and emotion- action, Husband continued to re- (R. 104). al Thus, distress. move marital monies from the marital court found that: estate. The monies removed Hus- as a result of [Brenda] undergoing sur- band from the marital $107,- estate total gery to treat her endometrial and ovari- (Petitioner's 355.000 32). 16, Exhibits an cancers she has suffered a surgical trial, At Husband admitted removing the menopause which cannot be treated with $107,855.00 from the marital estate but estrogen replacement medication for at denies that the removal was wrongful. least years three .... this condition has
physically mentally incapacitated The Court finds that on September to the extent [Brenda] that her ability to 30, 1997, joint preliminary injunction support herself is materially affected was entered at the time of the filing of and that she is entitled to maintenance. the Petition Legal Separation. On [Brenda's] earning ability is July 1998, at the time the cause was $10,000.00per year. [Brenda's] monthly converted to a divorce proceeding, an- expenses medical) (excluding ap- are other Joint Mutual Restraining Order $1,500.00 proximately per month. was entered. Both of these Restraining (R. 105). prohibited Orders both parties from transferring, encumbering, concealing,
The trial court's award of spousal main or disposing of marital property except tenance is amply supported by evidence in the usual course of business or for the that Brenda's illness has left her physically necessities of life without written con- and mentally incapacitated to the extent sent of parties or permission of the that her ability to support herself is mate Court. On March Agreed rially Therefore, affected. the trial court's Provisional Order was entered providing award is authorized the factors delin in part as follows: eated in § 31-15-7-2(1), Ind.Code and is not clearly against logic and effect of parties The agree to account to the facts and circumstances. We find no each other for all spent monies error. joint accounts since the filing Agreed this proceeding.
III. Violation of .of Order *9 Dan next argues that the trial court parties 3.The agree further that no by érred failing apportion to expendi- the monies will be withdrawn in the tures he and his former wife made for future by unless done their mutual can sub- that Husband the extent ed to of this upon order or
consent the actual through documents stantiate Court. earnings out of his Husband payment 401(k) contribu- post-separation of shall agree that both parties 6.The tions. not and shall from restrained be has that he claims 39. Husband encumber, conceal, sell waste, for $122,922.00 expenses for spent any property. of during pendency the Blair Blaine and these violated Husband has only Not contends Husband this action. an ade- provide to orders, failed he has chil- for the expenses were of the some by para- required accounting, as quate person- and some were education dren's Order, for Provisional # 2 of the graph of the children. Some for expenses al joint ac- from the removed monies the pay- used for monies Husband filing of since by Husband counts he seeks which expenses ment of Moreover, Husband's proceeding. Hus- upon were based reimbursement to use marital he was entitled claim he marital monies testimony, own band's edu- children's for the pay monies to in vio- the marital estate removed para- terms of contrary to the cation Restraining Orders the Court's lation of Provisional Or- Agreed # 1 of the graph Provisional Order in violation of the der: the chil- pay for Husband requiring party, to either prejudice 1. Without Husband expenses. dren's educational pay will that Husband agreed it is supplied a breakdown has not education- the future provisionally came from money that of amount Bizik and A. for Blair expenses al of the amount versus marital estate It is understood Bizik. Blaine from his own paid Husband money that agree, parties that unless has earnings. Husband post-separation hearing deter- at final shall checks or re- any canceled supplied the edu- portion of mine what expen- the claimed to substantiate ceipts any, if shall be expenses, cational D-L. Exhibit Respondent's in ditures to Wife. allocated higher her ed- supporting Exhibit Wife's to invade decision unilateral Husband's for the children's ucational contributions purportedly use marital estate sup- large part inwas expenses college the chil- of payment for monies certain (Petitioner's checks canceled ported inwas viola- expenses dren's educational #21). for re- claim Husband's Exhibit Provisional Agreed this Court's tion of in listed expenses for the imbursement Order. D-1 is denied. Exhibit Respondent's Exhibits in Petitioner's The assets 115-116) origi- (R. 108-110, (emphasis already included are and #82 #16 nal). estate. the marital of the valuation that his contends
Essentially, Dan pay for monies the marital to use for a credit claim Husband's or was an expenses educational children's the life insur- the value of against set off course in the usual dinary expenditure post- the amount policies for ance Spe life. the necessities or for paid is de- business that he premiums separation hold this Court's upon cifically, Dan relies a credit claim for Husband's nied. 671 N.E.2d Marriage Coyle, 401(k) in In re ing plan of his value against the stated we where (Ind.Ct.App.1996), grant- should credits post-separation *10 that, "money spent education, for a $23,000.00. child's respect With to this issue the transportation housing does not usual- trial court found as follows: ly constitute a waste or misuse of marital 34. State Farm Bond Fund assets. These are the expendi- kinds of (# 602109011). Husband does not dis- parents tures that typically make for their agree $220,507.00 with Wife's value for Thus, children." Id. at 944. Dan wishes Husband, instead, this asset. seeks to for us to remand this matter for the trial against set off the value the sum of to reevaluate the college amount of $23,000.00 for monies he claims were expenses by incurred parties both ap- received from First, his mother. Hus- portion the expenses accordingly. This we band does not supply the Court with a will not do. Dan point misses the check showing the source of deposit the ruling court's on this issue. The trial even though Husband on knew Decem- court did not find that Dan misused the ber 1999 that Wife claiming was marital monies in a manner not in the Husband had misappropriated and dissi- usual course of business or for the necessi- pated Further, marital monies. even if Instead, ties of life. simply it is true that Husband received the Dan, by found that removing $107,855.00 $23,000.00 above mentioned from his from the martial estate without Brenda's $23,000.00 mother the is still written permission consent or included of the trial parties' marital estate. court, thereby violated two separate re- orders, straining and an Agreed Provision- (R. 114) (emphasis in original). Moreover, al Order. by failing provide to Nevertheless, argues Dan an Exhibit adequate accounting for the monies re- A-7 reveals 25, 1996, that on June joint moved from check accounts, a fact to concedes, $23,000.00 which the amount of Dan the trial court lacked was drawn on an account with evidence Mercantile National substantiate Bank "necessity Indiana, of life" with claim. Andrew and Helen Bizik Remitter, paid to the order of Dan IV. Set off Bizik. Exhibit A-7 also reveals that on 25, 1996, Dan June next claims that Dan deposited he is entitled to a $23,000.00 set off from into the value of a State Farm Municipal State Farm Bond Fund in Bond Fund. $28,000.00. amount of Specifically, Dan contends that because the However,
$23,000.00 Dan fails to direct us to were funds he received from his mother, evidence $23,000.00 and was not property by money owned him Brenda, $23,000.00 owned his Instead, mother. part was not the record of the marital merely estate. For reveals argument, his that Dan received $23,000.00 Dan upon relies this Court's from decision in his mother and subse Riddle, Riddle (Ind.Ct.App.1991), quently deposited N.E.2d 78 that amount into a State denied, ns. Farm Municipal where we held Therefore, Bond Fund. tra that, "for an asset agree come we within with the trial court that even if it ambit of 'property,' one or both of is true that Dan $28,000.00 received the spouses must have a vested mother, inter that money is still includ est in the asset." However, Id. at 81. ed in the marital estate. See Hurst v. record reflects that Dan Hurst, provide failed to 676 N.E.2d 415 (Ind.Ct.App. the trial court with 1997) evidence that he did (stating that property all owned not have a present vested interest in the parties, acquired whether prior to the
773 having just spouse to the considers inheritance, is marital through marriage or any children. custody of property). (4) during parties of the The conduct Equal Division Deviation V. disposi- to the marriage related the as that the trial Finally, argues Dan property. of their dissipation tion or from the deviating by its discretion
abused of (5) earning ability earnings or The marital estate the dividing of presumption to: as related parties the 70% awarding and instead equally, (A) property; Dan of and a final division Specifically, marital estate. the of § re 31-15-7-5 that Ind.Code contends (B) prop- of the a final determination prop marital court to divide a trial quires erty rights parties. of the man just in and reasonable erty equally, brief, analyzes each of In his Dan to court failed ner, that here and argue to factors an effort the above already has trial court "the do so because considered improperly trial court that the parties' the disparity of the calculated However, we find because by each factor. cireumstances and economic earnings adequate properly and that the trial court maintenance, this fac such that awarding sup to of the factors ly considered each in the determination both is calculated tor of presumption the a deviation from port in the distribution and maintenance division, we will not ad equal property 29). Ind. Brief at (Appellant's assets." to respect with arguments dress as follows: provides § 31-15-7-5 Code the division respect to each factor. With mari- equal division Presumption for estate, trial court found of the rebuttal property; tal follows: as that presume The court shall 5. Sec. property that of the has shown division 40. The evidence equal an marriage, just year and reason- parties' 82 parties during between may However, in his efforts presumption Husband supported able. Wife Insur- presents who Farm by party within the State rebutted to advance evidence, including required evidence industry. This Wife ance relevant factors, an he advanced following concerning the with Husband relocate just and Wife not be Farm Insurance. through division would State equal at work Husband supported reasonable: also calls, office, making phone cleaning the (1) spouse of each The contribution by attending supporting Husband and regard- property, acquisition functions social hosting various in- contribution was less of whether Farm. State producing. come (2) property to which The extent further finds The Court spouse: acquired each in the disparity tremendous there is a (A) marriage; or before earning earnings parties' earns at least Husband ability (B) gift. through inheritance earning capable what Wife is times (3) of each cireumstances The economic #1). (Petitioner's Exhibit disposition at the time the present. spouse earn- Husband's effective, disparity The between includ- become is to property ability and the earn- earning ings fam- awarding the desirability of ing the is exac- ability of Wife earning ings and in the right to dwell or the ily residence work considering Wife's when erbated periods as for such family residence limitations and restrictions due to the Husband will be receiving a tax deduc- *12 consequences of her cancer treatment. tion for the payments maintenance made Further, to Wife. payments During the being course of pro- by made Husband to ceeding, Wife Husband removed constitute monies from only income, one-third of his after estate in sub- excess $100,000.00. tracting business expenses Husband has used the mo- for which personal nies own Husband is Further, for his benefit or busi- reimbursed. parties' children have completed now ness interests. The monies Husband their education. One child graduat- has has removed from the marital estate ed from law school and the other diminished is now have the value of the marital working as a mechanic after graduating by estate virtue of the interest from Nashville Auto Diesel College, would have acerued to thus the aforesaid mo- reducing the significant expenses nies had the Hus- monies been left in the band has been paying for the marital estate. children. (R. 120). 48. The Court further finds that Husband's economic cireumstances at Therefore, we find that the trial court disposition time the of the property properly considered, found and concluded is to become effective is much better respect with to each factor of Ind.Code than Wife's. Husband continues in his § 31-15-7-5 in order to deviate from the long term business relationship with presumption of equal marital property di State Farm earning Insurance substan- vision, thereby awarding Brenda 70% of tial money sums of whereas Wife is hav- the marital estate. the trial ing to "start over" age 58 in a new court adequately considered the act that voeation with limitations on her mental pursuant order, to its required Dan is and physical ability and capacity. At pay both maintenance and property settle the time of final hearing, Wife had mini- ments to Brenda. money
mal whereas Husband had taken CONCLUSION marital monies and invested at least $60,555.00of the in monies a real estate Based on the foregoing, we conclude deal and had also done § this via a 1031 that the trial court erred by including tax exchange free so that the monies Dan's Supplemental Executive Retirement being invested Husband in the real Plan in estate, the marital and thereby estate deal have no tax conse- awarding (70%) Brenda seventy percent quences. Husband never consulted the value of said plan. Therefore, we re- Wife about this nor did he prior seek verse the trial court's conclusion on this Court approval. issue alone and remand for the trial court 44, The foregoing factors support a to remove Dan's Executive Supplemental deviation from the presumption of an Plan from the distribution of marital as- equal division. sets.
(R. 116-117). Moreover, the trial court We further conclude that the trial court stated that: did not abuse its discretion ordering 49. The Court is aware that Hus- Dan to pay spousal in maintenance band will be paying both maintenance the amount of per week, $400.00 above and and property payments settlement beyond her awarded share of the marital
Wife. payments These will total over estate the amount $1,059,044.00, $45,000.00 in the first year. However, trial court properly found that Dan's deci- estate and use the martial to invade sion BEDWELL, Appellant- Bruce W. payment of the monies for
certain Defendant, in vio- expenses was educational children's Agreed Provision- of the trial court's lation denied Order, properly al the marital estate claim to set off COMPANY, SAGAMORE INSURANCE claims $23,000.00,for monies he the sum Appellee-Plaintiff. *13 mother, and the trial from his
was received No. 90A02-0102-CV-83. by devi- discretion did not abuse its court equal of an ating presumption form the Appeals Court of of Indiana. division, thereby award- property the marital estate. ing Brenda 70% of Aug. and re- part, and reversed
Affirmed in part.
manded
FRIEDLANDER, J., concurs.
SULLIVAN, J., opinion. coneurs with
SULLIVAN, concurring. Judge, appropriate it agree I is
While to "remove Dan's the trial
order Plan from the dis- Supplemental
Executive 774), I (Op. marital assets"
tribution of it correct to state that the
do not believe is a marital asset. included the Plan as sure, portion the distribution
To be the wife is to
the decree indicates of the 70% and the husband 30%
receive However, adding that in all it is clear
Plan. distribution, the court subject to
the assets Plan. The Supplemental include the
did not subject to marital estate distribution
total $1,512,920 no amount at- and includes Plan. The court to the unvested
tributable $1,059,044 wife is entitled to
stated that 70% of the total estate.
which is includes no distribution
Again, this In or the wife.
Plan either to the husband merely I would order regard, of the decree portion
court to strike the the Plan. purports to distribute
which