*1 (3) against respect to claims interlocutory review of the Wells’ With seeks Wells not an ade- 4, Appellees, the other there is deny- 2006 order December trial court’s accept quate basis for Court to discre- granting to Reconsider ing his Motion tionary interlocutory jurisdiction over the Amy Ber- Herman Bernitt Appellees case. In of support to Reconsider. Motion nitt’s Acceptance for of Jurisdiction his Motion (4) Therefore, Appellant’s Motion for Interlocutory contends Appeal, of Wells Acceptance Interlocutory of of Jurisdiction 4, 2006 the trial court’s December that if Appeal DENIED. is erroneous, of but determination order is (5) PUB- Order is This ORDERED delayed entry after the of is until
the error LISHED. have then the case would judgment, final would, retried, argues, which Wells to be HOFFMAN, VAIDIK, RILEY, J.J., parties’ of and the trial be a waste Sr.J., concur. resources. court’s order, 4, order, In its December request trial court denied Wells’ summary prior grant its
reconsider An- Appellees as to Franklin
judgment Furthermore, and Richard
drews Wells. Motion to granting the Bernitts’ Recon- sider, summary granted HARTLEY, Appellant- John M. on claims
judgment to the Bernitts Wells’ Respondent, infliction of for defamation and intentional v. The trial court’s De- emotional distress. HARTLEY, Appellee- F. contained follow-
cember order “[tjhe further finds Petitioner. ing language: court just delay, not that there is reason No. 48A04-0603-CV-147. judgment is now entered favor of Appeals of Indiana. Court Defendants, Burnitt, Amy Herman on II and III of Plaintiffs Amend- Counts March Complaint.” ed matter,
Having reviewed the the Court
FINDS AND AS FOLLOWS: ORDERS
(1) entering judgment favor of Amy on II
Herman and Burnitt Counts Complaint, the
and III of Wells’ Amended specifically language
trial court used 56(C).
Trial Rule
(2) Consequently, grant the trial court’s judgment summary to the Burnitts was right appealable final order as of discretionary appropriate
not interlocu-
tory Appellate Rule review under Ind.
14(B). 2(H) (de- See Ind. Rule Appellate
fining Judgment). a Final *3 21, 2004, July
On John filed a petition 23, 2005, dissolution. On November 21, 2005, and December hearing held a on petition. The trial court took the matter under advisement requested parties pro- file posed findings of fact and conclusions thereon, and both did so. On Feb- ruary 2006, the trial court issued its final judgment, which included the follow- ing findings relevant and conclusions: *4 Childers, Jason A. Hulse Lacey Harda- FINDINGS OF FACT Shine, P.C., Anderson, IN, cre Austin & Attorney Appellant. for Hartley 9. John employed by Sears Hall,
D. Eric Busby Cooper Austin & and in 2004 earnings $32,232.00 had Farr, Anderson, IN, Attorney Appel- earning[s] testified his slightly were lee.
higher in 2005. John Hartley pur- also repairs chases cars and the same for OPINION resale and sells about four per vehicles CRONE, Judge. year averaging profit per $350.00 sale. Summary Case 10. Nancy Hartley is employed at (“John”) Hartley John M. challenges the Diagnostics Roche at an annual salary of trial court’s dissolution decree that ended $66,482.00 in 2004. Her earnings were (“Nan- marriage Nancy his to Hartley F. comparable in 2005. cy”). We affirm. Issues 2005, 16.In Hartley John had issues, John raises three which we re- only overnights with only one child state as follows: rather than three children. As a result I. Whether the trial court erred in of having overnight visitation with
its disposition of marital property; time, one child at a Hartley John would need overnights with a child II. before Whether the trial court erred in he eligible would be for a parenting time failing apply to a parenting time pursuant credit to Parenting the Indiana credit to his child support obli- Time Guidelines. gation; and III. Whether the trial court erred
denying request attorney Main, 19. Jo Anne Nancy Hartley’s fees. mother, gifts Nancy made to Hartley family. and her gifts The started in History Facts and Procedural husband, 1990 after Jo Anne’s 27, May 1988, On Farr, John and Nancy were gifts died. The came from a trust They married. had three during children fund established John Farr and other J.M.H., their marriage: September born monies came from Jo Anne Main’s sav- 29, 1988; J.A.H., April 1990; born ings. From 1990 to Jo Anne Main S.H., 6,1993. April born gave Nancy family her Hartley’s gram employment. were at John
$158,000.00_ gifts Ms. Main’s parties agree chil- these monies Nancy to use for the The intended for post- gifts were should be used for children’s though some dren even secondary Hartley or the chil- educations. to John distributed dren. and Jo Main Hartley 28. Anne to the
purchased gold prior and silver Hartley and Nancy 23. Jo Anne Main given by Y2K scare monies Jo portion purchased gold with Anne Main and from custodial accounts The money prior to the Y2K scare. gold for J.M.H. and J.A.H. The made in 2001 for payments $17,771. three silver have a value of J.A.H., [J.M.H, $3,000.00 each December, 2003, In Jo Anne Main 29. directly Putnam to 529 were made S.A.] $9,000 directly to 529 Putnam col- gave Nancy Hartley was college accounts. [J.M.H., J.A.H., and lege accounts for to Nan- paid the monies also aware that accounts have a combined S.H.]. These in 1999 in the cy and children the three $9,074.00. value of $40,000.00 applied to be sum of were December, 2000, Ann Main Jo acreage in Markleville purchase *5 $10,000 Nancy Hartley was gave which the col- as an for children’s investment immediately into a ac- invested custodial lege education. time count for J.M.H. The account at the a Pen- [in] 24. The own house parties $7,402.00 separation of had a value of dleton, appraised for which was Indiana Nancy Hartley the of and custodian $158,000. mortgage. house has no The this account. Pendleton, Indiana The [in] 25. home Hartley 31. John has a defined benefit $56,000.00 originally purchased for was 401(K) pension through and account $40,000.00 pay- in lump in 1988. sum employment with Sears. All of John’s by mortgage made ments on the were employment during at Sears occurred Nancy Hartley gifts from received CPA, marriage. Sandlin, John val- from Jo Anne Main. Hartley’s ued Mr. retirement as benefits [in] The also own 11 acres parties 26. having pre-tax $64,985.00 a of value Markleville, Indiana.... The $52,313.00. an after-tax of value home site. The also has a mobile on Nancy a Hartley 32. has defined bene- ap- land and the mobile home were 401(K) pension through fit and a account $72,000.00. The Markleville praised employment Diagnostics. her with Roche in acreage purchased portion A small of her retirement bene- $40,000.00 $56,000.00. purchase marriage. prior [was] fits earned gifts Anne price came from from Jo CPA, Sandlin, Hart- John valued Mr. $16,000.00was from Main and borrowed ley’s having a retirement benefits as 401(k) Nancy through Hartley’s account $161,481. a cover- pre-tax value of With Roche Diagnostics]. percent, ture ratio of 92.02 the retire- $50,032.00 27. The in Unit- parties own mar- during ment benefits earned ti- Savings ed States are Bonds. Most $148,595 riage had value pre-tax a of in Hartley’s tled name either John $119,619. an of after-tax value from Hartley’s gifts name. The furnishings The purchase Jo Anne Main were used to 33. household $10,000 by agreement of worth tools were 80% the bonds. About divided pro- specifically a valued. purchased through parties bonds not were parties 34. The own five vehicles: a continuation of parties’ intent 1996 Buick Roadmaster by driven John maintain funds for their children’s edu- Hartley $6,590.00; valued at another cation.
1996 Buick by Roadmaster driven Nan- $4,500.00
cy Hartley valued at because higher mileage repairs; needed CONCLUSIONS OF LAW Caprice Chevrolet convertible val- $10,000.00; ued at a 1978 Chevrolet Sil- 2. The joint shall have legal $2,000.00, verado truck valued at and a custody of the children with Nancy hav- 1983 Chevrolet Silverado truck valued at ing primary physical custody. $800.00. During 35. marriage, the course of the
Nancy Hartley Hartley was the John principal wage pay shall support child earner managed and also large share sum commencing next $167.00 parenting Friday on responsi- changes and household based par- life, bilities. For ties[’] most of their married income and his overnight limited Hartley contact worked about 25 with the hours a children. week. 36. The Hartley three children are Court, 10. The being duly advised years
within five of each other. All of premises and led the facts in this may them be attending college or voca- case, must conclude that unique circum- training tional at the same time. stances preclude exist that equal distri-
bution and partitioning of assets and *6 liabilities contemplated by as the statute parties 40. The desire for their chil- as follows: dren to if college they attend so choose.
Most of $158,000.00 the investments by made a. given to Nancy Hartleys were to Hartley insure their children’s family by and her her mother higher gifts educations. The by gifts made as between 1990 to 2003 as an Jo Anne Main were intended for Nancy’s advance of inheritance. Hartley children’s future. Nancy b. Hartley’s significant con- parties 41. The intended to use their tributions to acquisition proper- pay investments to ty during their children’s the course of marriage, post-secondary education. based on her being principal wage earner and undertaking prominent 42. Nancy Hartley requested has that role child care and household tasks. the investments made for their chil- trust, dren’s placed education be in a 11. The Court acknowledges that it is parties, controlled college and making an uneven distribution of marital expenses vocational with the remainder property and also considers the fact that to be divided parties between the when also intended for funds to be youngest child past college age. available for higher the children’s edu- The education trust would represent cation. 12. The Court concludesthe value of marriage the assets of the are as follows: Pendleton,
Real Estate 58,000.00[1] [in] Indiana $ establishes, 1. The record $158,000.00. and the total value estate has an actual value of reflects, marriage Appellee's assets App. the real at 6. 401(k) Diagnostics] Roche Hartley’s from pension Nancy 119,619.00 $119,619.00 tax after value. $148,595.00 $ tax value 401(k) $64,985.00and pre tax value Hartley’s Pension and Sears 52,313.00 $52,313.00 tax value after valued) ( not goods and tools Household 72,000.00 $ [Property] Markleville 50,031.75 EE Savings $ Bonds —Series States United 17,771.00 $ and Silver Gold Plan Putnam Funds 3,008.65 [J.M.H.] $ 3,015.69 [J.A.H.] 3,045.45 [S.H.] 6,590.00 $ 1996 Buick Roadmaster John’s 4,500.00 $ Roadmaster 1996Buick 10,000.00 Caprice Convertible 1973 Chevrolet $ 2,000.00 Silverado $ 1978 Chevrolet $ 800.00 1983 Chevrolet Silverado 502,694.54 $ TOTAL reasonable, just and to be following consider- tribution on the 13. Based facts conclu- and relevant ations logical.
sions, following dis- the Court finds Hartley: are set over to John following
14. The assets benefit, value) 401(k) (after 52,313.00 tax pension Hartley’s $ a. John Sears goods possession. in his All household tools b. 6,950.00[2] driving. Roadmaster he is The 1996Buick c. convertible, Caprice The Chevrolet d. Silverado, and the 1978 Chevrolet 12,800.00 1983 Chevrolet Silverado. 72,000.00 [Property] $ Markleville e. 144,063.00 $ TOTAL Nancy Hartley: are set following assets over 15. The 158,000.00 Pendleton, Indiana. [in] $ The real a. estate 401(k) 119,619.00 Diagnostic^]. pension and from Roche Hartley’s b. 4,500.00 by Nancy. 1996 Buick Roadmaster driven c. The *7 possession. in her Not Valued goods d. All household ($ 69,826.00) trust. e. Less educational 212,293.00 $ TOTAL marital percent Hartley Hartley shall receive the 16. John after is fund- Markleville, remaining assets the trust Indiana as his acreage [ ] ed. the property with understand- separate Hartley will Nancy commit
ing permits 18. Indiana Code 31-16-6-3 401(k) $69,826.00 a sec- from her and/or apart property of to set Court mortgage on the marital residence ond necessary and parents either or both children’s educational towards proper support of their children. trust. aside, funds property 19. set Unless is for the likely are not to be available provides 17. The division of giv- percent post-secondary children’s educations Nancy Hartley with 60 $6,590.00. We Appellant's App. at 16-17. value of T 996 Buick Roadmaster in 2. The discrepancy this below. trial court's order is address conclusion ages en their close period the short 25. party Each shall be responsible for his or attorney her own they of time before fees. college age. become Appellant’s App. at 9-19. 20. The parties have received substan- tial funds from gifts Jo Anne Main as Discussion and Decision intended to benefit the children’s future case, present the trial court re- and the have set aside funds with quested proposed findings of fact and con- primary intention using said funds clusions thereon on its own motion. higher educational expenses. sponte Sua findings only control as to they issues cover. aWhen trial 21. The Court concludes that an edu- court findings fact, has made we re- cational trust should be established for view the sufficiency of the evidence us- the children as a continuation of their ing a two-step process. First, we must intent to invest for their children’s edu- determine whether the evidence sup- cation. ports the trial court’s findings of fact. 22. Second, The following assets shall in- we must determine whether findings those of fact support cluded in the trust to be trial held for the court’s conclusions law. We will set children’s education: findings only aside the if they clearly are $69,926.00 a. to be by contributed Nan- Findings erroneous. clearly are errone- cy Hartley as described above.[3] ous when the record contains no facts to support them either directly or b. United States Savings Bonds held by A judgment inference. clearly er- Nancy John and Hartley valued at roneous if it applies wrong legal $50,031.75. properly standard to found facts. gold c. The by Nancy silver held In applying standard, we neither $17,791.00.[4] Hartley reweigh the evidence nor judge the credibility Rather, of the witnesses. we d. plan [J.M.H., The 529 funds for consider the evidence that supports the J.A.H., S.H.], $9,072.69. totaling judgment and the reasonable inferences to be drawn therefrom. To make a determination that finding or conclu- d. On termination of the educational clearly erroneous, sion is our review of trust, remaining funds in the trust the evidence must leave us with the firm will be percent distributed 60 conviction that a mistake has been Hartley percent and 40 Hartley to John hand, made. On the general other if both survive. judgment will control as to the issues
upon which there findings. are no A 3. We Nancy's note that the value of contribu- rely we purposes' will therefore on it of for tion set forth in analysis, conclusions 15 and 16 of the our $69,826.00. trial Appellant's court's order is App. at 18. Nancy Because the amount that gold The value of the and silver set forth in was to contribute to the children's trust was conclusion 12 of the trial court's order is court, by nothing $17,771.00. chosen the trial there is in Appellant’s App. at 16-17. The the record to establish value which is correct. evidence establishes that this is the correct However, $69,826.00 twice, appears since we Appellee’s App. value. at 13. We therefore value, think likely it is more rely the correct analysis. and on it in our
282 silver, bonds, findings savings gold the and the entered judgment
general plans.5 if it can be sustained on 529 The trial court included all affirmed will be by theory supported the evi- these in its any legal assets calculation value App. Appellant’s of the marital estate. dence. complaint that 17. John’s real is not the (Ind. N.E.2d 215 Gregg Cooper, v. 812 trial court failed to include the trust fund (citations quotation Ct.App.2004) estate, that assets in the marital but the omitted), denied. trcms. marks property trial court divided the marital Disposition of Marital Estate I. in between the the assets the after disposition trial court’s were appeals the children’s education trust fund set estate, claiming that certain However, Marriage marital In re aside. the of excluded, that sev- Nickels, improperly (Ind.Ct.App. assets were N.E.2d 834 1091 improperly val- 2005), marital assets were eral that trial court demonstrates the did ued, improperly that the in dividing not err in marital estate more than half the estate. We Nickels, awarded In this manner. we determined in turn. address each deducting that trial court did not err in the $20,000 college fund from education Assets A. Excluded dividing bal the marital estate before the that trial John first contends the equally ance of the estate between the in to include in the failing erred court parties. at 1099. Id. it set to aside marital estate assets John also asserts that the trial education trust in the children’s placed court relied Indiana improperly on Code the value of the determining In fund. to Section 31-16-6-3 create the children’s estate, required court is to marital trial trust fund. Indiana Code Section 31-16- by spouse either property include owned provides, support part 6-3 “As of the child by marriage, acquired either before may part order set apart the court right or own after the spouse her parent par of either or both separation of the
marriage and before final necessary proper ents appears that joint acquired by their efforts. parties, argu support of child.” John’s “one-pot” § This 31-15-7-4. Ind.Code implies provid ment that the authorization subject are theory insures that all assets ed Indiana Code Section 31-16-6-3 is power divide and to the trial court’s limited to in which a circumstances child Thompson, Thompson 811 award. v. support specifically support order includes trans. (Ind.Ct.App.2004), N.E.2d necessary for education and a trust (2005). may denied While parent pays insure the education that particular ultimately as determine support. disagree. We solely to one should be awarded set it must include the asset its spouse, first Schueneman, v. Schueneman as the marital estate consideration to how (Ind.Ct.App.1992), part N.E.2d divided. Id. should be marital included estate an escrow account in the and Carol trust names Richard The children’s education fund cre- proceeds funded from the by the trial court has a total value of Schueneman ated $146,801.44 $69,826.00 dividing a lawsuit. Before the assets includes *9 by Nancy, parties, the United States the account between the trial contributed plans properly that the 529 are excluded from the marital estate. 5. John states because they Appellant’s only, may at 9. in the children's be Br. names
283 $15,000 placed court set aside to be in a trial court concluded that if funds were not trust for secondary aside, the children’s edu set money would not be available any cation and that ordered funds remain post-secondary children’s education be- ing graduated after the last child from cause the children were close in age and college age twenty-four or reached the would soon college age. be of Appellant’s equally distributed parties. between the App. at 19. The trial court also concluded dispute There was no that Indiana Code Nancy’s that gave mother sub- 1—11.5—12(c), Section precursor to stantial 31 — funds with primary intention of 31-16-6-3, Indiana Code empow Section using these funds for the post- children’s ered the court to establish the trust fund. secondary education. Under these circum- challenged Richard the trial court’s cre stances, we find no error in the trial fund, ation of the education trust arguing court’s creation of the children’s education there was no evidence that he and trust or the manner in which it funded the Carol pay would not for the children’s trust.
education. We held that the trial court required was not to find that he and Carol B. Valuation of Assets likely were not to paying continue John argues that the trial court college expenses. 610; Id. at see also In erred in valuing parties’ pensions Davidson, Marriage re the 540 N.E.2d (k) values, accounts their after-tax in (Ind.Ct.App.1989) (finding no er applying a coverture ratio of 92.02% to ror where trial court set aside bank ac 401(k), Nancy’s and in listing the value of annuity, count and in be held both hus his 1996 Buick Roadmaster. names, band’s and wife’s for education of action, In a dissolution the trial court parties’ nine-year-old daughter). has broad discretion in determining the Nevertheless, John maintains that property, value of and its valuation will creation of the education inap- trust was only be disturbed for an abuse of that propriate based on the factors set forth in discretion. long So as there is sufficient 31-16-6-2, Indiana Code Section which in- evidence and reasonable inferences to clude the aptitude ability, child’s valuation, support the an abuse of dis- child’s ability reasonable to contribute to cretion does not occur. We will not expenses work, educational through loans, weigh the evidence and will consid- resources, and other financial and the abil- er the light evidence most favor- ity parents expenses.6 meet these judgment. able to the disagree. We Breeden, Breeden v. 678 N.E.2d dissolution, At the time of the J.M.H. (citations omitted). (Ind.Ct.App.1997) school, junior was a in high J.A.H. inwas eighth grade, and S.H. seventh We first address the trial court’s grade. J.A.H. and were straight-A application S.H. of after-tax par values to the students, thought 401(E) and J.M.H. he pensions ties’ Tax accounts. pursue addition, college. consequences governed are by Indiana found that Nancy’s most of John and in- 31-15-7-7, Code Section provides, which vestments were specifically court, made for their “The in determining just what post-secondary children’s education. The reasonable in dividing property under this Indiana Code Section 31-16-6-2 authorizes higher learning schools and in institutions money the trial court to include issuing support children's when child and education elementary education secondary support orders. *10 284 dispute the mathematics to conse- no reason the tax consider
chapter, shall calculating this so we withdraw used -with disposition property quences made objection might we have any that and future economic present to the respect previously. stat- party.” “[T]he each of circumstances consider court to the trial requires Having ute withdrawn his ob- at 156-57. Id. necessarily inherent and or arguing the direct from jection, estopped is now property ‘of the consequences tax applying incurred trial court erred that the ” Harlan, 560 v. Harlan disposition.’ pensions parties’ to the after-tax values (Ind.1990) 1246, (affirming Crowe, 1246 401(k) N.E.2d v. 778 plans.7 See Clark Harlan, 544 N.E.2d v. quoting (holding Harlan 835, (Ind.Ct.App.2002) 841 N.E.2d 553, (Ind.Ct.App.1989)). 555 into settlement party that who entered survey property based on agreement calcu- Here, public accountant a certified from object estopped he did not which of values and after-tax pre-tax lated incorrect). survey was arguing that 401(k) accounts. pensions and parties’ 64, 68; EEE. The Ex. App. Appellant’s to John’s contention now turn We admitted calculations were a application accountant’s of the trial court’s 401(k) initial- Tr. at 153-57. John Nancy’s into evidence. coverture ratio 92.02% spec- “If there’s some objected, stating, ly consists of argument was error.8 John’s after tax value in that exhibit about any ulation to cite and he fails paragraph, one Id. at 154. object part to that of it.” authority. party generally we do A supporting however, he reviewing the exhibits After to devel for which it fails any waives issue objection, stating, withdrew argument support op cognizable authority portions citation to again adequate I the calculation Judge, as see Rule all, Appellate Ind. the record. you’re, first of I think that today, 46(A)(8)(a); v. Micro Int’l & Co. Honor, fact that Olcott about the right, Your Inc., 1063, Syst., 793 N.E.2d Data Base account what the to take into you have 1068, denied. (Ind.Ct.App.2003), 1 trans. under n. tax effects possible therefore, is, waived. And, argument I This secondly, Law. have Case Indiana recognize, We as the dissent estopped N.E.2d at 1246. Although that John is we find out, application values were of the after-tax arguing points that the after-tax that the from does that Indiana case law improper, squarely we note within appear to fall values do not application of the support court's the trial by Code parameters set Indiana Section circumstances. values under these after-tax 31-15-7-7, direct the taxes are not the in that Mulvihill, panel Marriage another re In In necessarily conse incurred or inherent Court concluded that of this See id. quences distribution. allowing the its discretion in did not abuse Yet, disagree with supreme court did not retirement from the husband’s tax deduction acceptance of Mulvihill. this Court's stated died plan, noting that unless the husband disability, the tax before retirement or before used the coverture fraction 8. The trial court specula- consequences were definite and not pension between the to divide formula (Ind.Ct.App.1984). 471 N.E.2d 14 tive. methodology, the value of parties. Under this Code was decided before Indiana Mulvihill fraction, (k) plan multiplied 401 31-15-7-7, precursor Indiana or its Section period of time of which is the numerator 31-1-11.5-11.1, was enacted. Code Section (while marriage during existed which However, Indiana after the enactment of accruing) and the denominator is rights were 31-1-11.5-11.1, Court not- Code Section rights during period of time which the total Mulvihill was consis- ed that the rationale in Preston, Marriage 704 accrued. In re Harlan, N.E.2d at tent with the statute. (Ind.Ct.App.1999). 1098 n. N.E.2d Appeals opinion was Court of 555. The Harlan, supreme adopted by our court.
285 asserts, Nancy agrees, John also and party determines that a opposing equal an 14 trial that conclusion court errone- division has met his or her burden under ously statute, listed the value of the 1996 Buick the the trial court must state its him Roadmaster that it awarded to as reasons for deviating from the presump- $6,950 $6,590. Thus, instead of tion of an equal division in its findings $360 Chase, actually judgment. attributed to John that he did not Chase v. 690 N.E.2d receive. that trial Given court distrib- 756 (Ind.Ct.App.1998). Nancy
uted assets to John and worth baldly While John asserts that the trial $856,356, however, we decline to remand court erred in awarding percent of the for such a de minimis correction. marital Nancy estate to and 40 percent of him, the marital estate to argu- the two C. Division of Marital Estate presents ments he are not relevant to the John that contends the trial trial court’s decision to deviate from an court erred in from an deviating equal equal Rather, division. arguments at- property. division of tack the trial attempt court’s to effectuate its decision to property divide the unequal- The division of marital assets lies First, ly. he contends that the trial court within the sound discretion of the trial did not actually provide per- him with 40 court, and only we will reverse for an cent property because of the mis- abuse of discretion. a party When chal- takes it in valuing made the retirement lenges the trial court’s division of mari- accounts and the Buick Roadmaster. property, tal he strong must overcome a However, we have found no reversible er- presumption that the court considered ror in the trial court’s valuation of marital statute, complied applicable with the property, argument and therefore this is presumption and that one moot. strongest presumptions applicable to our appeal. may consideration on We not Secondly, John asserts that he was twice
reweigh the evidence assess the cred- penalized for Nancy’s the fact that mother witnesses, ibility of the and we will con- $158,000 gifted Nancy during the mar- sider the evidence most favorable riage. correctly He notes that the trial to the trial disposition court’s court equal concluded that an distribution property. marital Although the facts just would not be and reasonable for two and reasonable inferences allow (1) $158,000 Nancy reasons: received from conclusion, for a different we will not (2) mother; her princi- was the judgment substitute our for that of the pal wage earner primary and also the care- trial court. giver and housekeeper. John then states (Ind. Gentry, DeSalle v. 818 N.E.2d that again the trial court relied on gift Ct.App.2004). Indiana law that requires Nancy’s from to justify mother the cre- property “just marital be divided ation of the children’s education trust fund. provides unpersuaded reasonable manner” and for the We are that the creation of statutory presumption fund, that “an equal divi the children’s education trust with a $69,826, sion of the marital penalized any between the value of more just parties is and reasonable.” Ind. Code than it could penalize Nancy. be said to § presumption may 31-15-7-5. This parties’ be Most of the in- investments were rebutted, however, by relevant support post- evidence tended to their children’s equal just Further, an division would not secondary education. the chil- If reasonable. See id. represents only portion dren’s trust Nancy’s Support John contends mother and Child Guidelines.9 $158,000gifted *12 sixty-eight overnights, in from the that since he had value invest- appreciation
the addition, child, to money. In albeit with one he is entitled two that with ments made if enjoy of these of the credit he would be allowed the benefit thirds may John still the The percent any spent night. 40 all three children receive of as will assets he it offer Support the when Child Guidelines no direction remaining in trust termi- funds calculating parenting time when trial court did not base for credit Finally, the nates. parent overnights a fewer solely spends on the fact with unequal its distribution $158,000 may than his have from her all of children. While it Nancy received that at- important justification been the trial court to permissible for Another mother. in principal wage parenting tribute time credit to John Nancy was the was that described, caregiver he cannot primary manner has we earner and say grant a trial court that that the not to John housekeeper. The found decision an twenty-five parenting time credit was abuse of dis- only about hours John worked marriage, and for John cretion. a week most finding. In challenge not con- does Attorney III. Fees
trast,
during
fulltime
Nancy worked
an interval after
marriage except during
31-15-
Indiana Code Section
when she
their second child was born
may
10-1
trial
order
provides that a
court
sum,
In
Tr.
176.
we
parttime.
at
worked
party
pay
a
a
to
to
reasonable amount
not
the trial court did
abuse
conclude that
maintaining
other
for the cost of
or
party
dividing marital
in
estate.
its discretion
defending any
pro
action in dissolution
ceedings. We review a trial court’s award
Parenting Time Credit
II.
attorney
of
in
a disso
fees
connection with
argues
that
the trial
lution
of
decree
an abuse
discretion.
John
528,
failing
apply parenting
Marriage
Pulley,
to
re
652 N.E.2d
court erred
of
(Ind.Ct.App.1995),
532
The
support obligation.
his child
trans. denied.
time credit to
trial
if
vested with broad discre
court abuses its discretion
its deci
Trial courts are
clearly
logic
support.
against
child
Dillon v.
sion is
and effect
ruling
tion
on
Dillon,
85,
it.
(Ind.Ct.App.
87
the facts
circumstances before
696 N.E.2d
1998).
Co.,
v.
605
According
McCullough
to the Indiana Child
Archbold Ladder
(Ind.1993).
Guidelines,
175,
making
time
180
parenting
credit N.E.2d
When
Support
award,
annually.
such
trial court
consid
begins
fifty-two overnights
an
must
6. In
er
eco
Support
parties,
Ind. Child
Guideline
other
the resources of the
their
condition,
words,
fifty-one
ability
if
has
fewer
nomic
parent
annually,
parent
engage
gainful employment
that
and to
overnights
then
income,
time
parenting
adequate
not
to a
credit.
earn
and other factors
entitled
sixty-eight overnights, but each that
on
John had
bear
the reasonableness
overnight
Spolnik,
with one child rather than
award. Hanson v.
685 N.E.2d
(Ind.Ct.App.1997),
all
The trial court found that
80
denied.
three.
trans.
overnights
153
with one
promotes
John
need
Consideration
these factors
would
eligible
legislative
for a
award of
purpose
child
he would be
behind the
before
fees,
attorney
on the
which is to insure that
parenting time credit based
Indiana
assuming
fifty-two nights per
eligible
parenting
Actually,
that
before
would
required
Support
are
the Child
child
under
time credit.
Guidelines,
overnights
required
would be
156
proceeding,
premised upon
who
a mistaken
party
interpretation
in a dissolution
explained
not otherwise be able to afford an of the law. Counsel for John
would
attorney,
representation.
grounds
is able to retain
withdrawal on
the court
at 928.
one
trial court need
reasons
mony concerning the after-tax value of the
Pulley, 652
for its determination.
N.E.2d
(k)
pensions and 401
accounts does not con-
at 532.
stitute a concession that those valuations
dissolution,
Here, at
the time of the
in
properly
determining
be used
$33,000
earning approximately
John was
value of the
to
in
assets
be included
annually, and he
marital as-
was awarded
pot,
opposed
marital
as
to using those
$144,063.
at
in-
valued
These assets
sets
in determining
valuations
how to distribute
property
cluded eleven acres of
valued at
in
pot.
assets included
Notwith-
clear,
$72,000, free and
and four cars.
standing that the evidence of both before-
payment
pay-
John has no house
or car
tax
proper-
values and after-tax values was
Accordingly,
ment.
conclude that the
we
court,
ly before the
the court was never-
trial court’s decision not to
award
required
correctly apply
theless
to
the law
attorney fees was not an abuse of discre-
to that evidence.
tion.
statute,
§
controlling
The
31-15-7-
I.C.
Affirmed.
noted
majority, provides
as
court,
“in dividing property under this
SHARPNACK, J., concurs.
chapter,
shall consider
the tax conse-
SULLIVAN, J.,
in part
concurs
and
quences
property
disposition with
in part
separate opinion.
dissents
with
respect
present
to the
and future economic
”
predecessor
circumstances....
The
stat-
SULLIVAN, Judge, concurring
part
in
ute,
31-1-11.5-11.1,
§
Ind.Code
which in
dissenting
part.
and
in
identically
pertinent part
pres-
read
to the
A,
I concur
to
I
II
respect
with
Parts
statute,
ent
in Harlan v.
was considered
and III. I respectfully
respect
dissent with
Harlan,
(Ind.Ct.App.1989).
different context or such as a dis- of a decedent’s estate under the
tribution corpo- or a
Probate Code distribution following a
rate assets dissolution 23-1-45-5,
corporation. See Ind.Code et.
seq. Joseph PEREZ, M.D., Appellant, Jude noted, tax consequences
As also upon marriage be considered such a disso- v. property lution distribution must not BAKEL, individually, James D. and as plan to the attributable personal representative of the Estate itself, distribution but must be direct or Bakel, deceased, Appellee. of Alora *15 necessarily inherent and incurred. No. 82A01-0604-CV-144. One ask how such tax conse- quences can be direct or inherent and nec- Appeals Court Indiana. essarily incurred unless such dis- March made, being tribution has been or is or has by been directed a final order of the court. question
The would then suggest stage proceeding of the dissolution merely
which the court is enumerating and
placing upon values the assets includable pot, dispo- the marital there has no been plan
sitional or order set forth and that
therefore, any contemplation of tax conse-
quences premature.11
The question possible implica- and its not, however,
tions are presented us accordingly case. Its answer must on day.
await another case another corresponding question my 11. A could also be 12. Because under view the trial court posed appropriate as to whether consider- reconsidering would be the valuation consequences ation of tax to a assets, attributable marital it would be no additional bur- pension marital dissolution distribution of placed den for the court to correct the value 401(k) plan plan may or a be further restrict- upon the 1996 Buick Roadmaster and to 401(k) pension plan ed the terms of the modify plan accordingly. the distribution respect itself to how and under what may circumstances the asset be distributed.