*1 MILLER, Sue Ellen Appellant,
Respondent, MILLER, Appellee-Petitioner.
Michael
No. 34A05-0106-CV-282.
Court Appeals of Indiana.
Feb. *2 for re- issues
band"). two presents She as: restate view, which its court abused Whether I. of the its discretion con- failing to marital residence brought this that Wife sider marriage. into its court abused trial Whether a determining that discretion an as- judgment support child awarding set in divid- to the Wife judgment property. ing and remand. reverse We PROCEDURAL AND FACTS HISTORY 28, on December married Peti- Dissolution filed his Husband 1993. no 5, There were April tion on however, marriage; born children 1997, adopted Wife's 27, Husband May on De- relationship. a son teenage support, pay order a court spite failed had biological father child's 1998, the Howard January pay, and Petition granted Wife's Court Circuit Judgment. Support Back Reduce entered arrearage judgment $17,675.00, plus for favor in Wife's interest. marriage, Wife of their the time
At in 1988 purchased she home that a owned IN, Attorney Kokomo, Ryan, A. Mark $10,000.00 pay- down $40,000.00 awith for Appellant. for Both her mother. loan from from a ment dur- substantially employed Law Of- were Dabrowski, Dabrowski A. Mark Husband marriage. course of Appellee. ing Kokomo, IN, Attorney fice, Corporation Chrysler employed military income from received and also OPINION Prior to disability. from a VA reserve KIRSCH, Judge. contributed marriage, Chrysler through account pay deferred ("Wife") appeals Miller Ellen Sue $6,287.56. At order disposition dissolution, account time of mar- of her dissolution from the arising $68,000.00. ("Hus- at over valued Miller "Andy" riage to Michael In the property disposition order, (2) The extent to which the property trial court awarded Wife the child support was acquired by each spouse: arrearage judgment, and Husband the de- (A) before the marriage; or pay ferred order, account. In its the court (B) through gift. inheritance or *3 determined that its division of the marital (8) The economic cireumstances of each assets resulted in approximate division spouse at the time the disposition of the ratio of 45% to 55% in favor of Husband. property is to effective, become includ- However, the court noted that "because ing the desirability of awarding the fam- not all property appraised; the debt of ily residence or right dwell [Wife] her mother will likely not be family residence for such periods as the repaid; and the fact that the value of the just considers spouse having personal non-itemized property awarded to custody of any children. is of [Wife] much greater value than that (4) The conduct of parties during [Husband], awarded to the Court finds the the marriage as related to disposi- equitable." division Appellant's Appendix tion or dissipation of their property. at 27-28. Wife now appeals.
(5) The earnings or earning ability of DISCUSSIONAND DECISION as related to: (A) a final division Our of property; standard of review in and disso lution deferential; cases is may (B) not final determination of the proper- reweigh the evidence or assess the eredi- ty rights of parties. bility Quillen of witnesses. Quillen, v. 671 Id.; In re Marriage Coyle, 671 N.E.2d 98, N.E.2d 102 (Ind.1996); Euler, Euler v. 938, 941-42 (Ind.Ct.App.1996). The party 554, 537 N.E.2d 556 (Ind.Ct.App.1989). challenging the trial court's property divi
We only consider the evidence most favor sion must overcome a strong presumption able to the trial court's disposition of mari the court considered and complied tal property. Fields, Fields v. 625 N.E.2d with the applicable statute. Id. at 942 1266, 1267 (Ind.Ct.App.1993), trans. denied (citing Hodowal, Hodowal v. 627 N.E.2d (1994). 869, 871 (Ind.Ct.App.1994), ). trans. denied This presumption is one of the strongest
A trial court must divide
prop
presumptions applicable to our
erty
consider
just
in and reasonable
ation
appeal.
(citing
Id.
In re Marriage
manner and that includes property owned
Stetler,
(Ind.Ct.App.1995),
657
395,
N.E.2d
by
398
spouse
either
prior
to the marriage,
(1996)).
acquired by either spouse after
ns.
denied
the mar
tra
riage
and
to final separation of the
Subject to the presumption that
parties, or acquired by
joint
their
efforts.
an equal division of
just
assets is
and
IC 31-15-7-4. An equal division of mari
reasonable,
the trial court has broad dis
tal property
presumed
is
just
to be
and
cretion in valuing and dividing marital
reasonable.
IC 31-15-7-5.
pre
This
property. Quillen, 671
102;
N.E.2d at
sumption
may
however
be
rebutted
a Simpson
Simpson,
v.
650 N.E.2d
335
party
presents
who
evidence,
relevant
in
(Ind.Ct.App.1995). The trial court's deter
cluding evidence of the following factors: mination
only
will
be set aside for abuse of
(1) The contribution
of each spouse to
Quillen,
discretion.
less of whether the contribution in- there is sufficient evidence to come producing. trial court's decision but only rather if the or Furthermore, trial court's and logic clearly against decision in an un estate dividing the der be- cireumstances facts effect by the explained fully manner equal Id. the court.
fore by the evidence supported previously As parties. submitted is divid property When the 45% justified stated, con be must and liabilities ed, both specif in favor 55% division Dusenberry, Dusenberry sidered. that "because in its order explaining ically Be (Ind.Ct.App.1993). 458, 461 N.E.2d the debt appraised; property all division upset likely it will cause not be likely will mother [Wife] one adjustment equation, value of fact that repaid; adjust liability or *4 to awarded personal non-itemized inequitable to avoid another ment of than that value greater much of is [Wife] reconsideration the or result finds the [Husband], the Court to awarded Id. property. of division of the entire Appendix Appellant's equitable." division 27-28. at Residence Marital of I. Valuation of Wife's question the Turning to court trial the that claims first Wife home, con we in the equity pre-marital of the in its valuation its discretion abused to remanded must be case the clude that failing to by and a marital as home of consideration proper for court trial the acquired had that Wife consider properly that fact of the light in contribution fur marriage. She to the pre home the Husband's court excluded trial the to failed court the that maintains account pay ther in his deferred equity marital its deviation support or explain adequately ignored Wife's court in its division. division. equitable at the presumptive while the in the home from equity pre-marital with the Husband crediting time same burden that the note firstWe pay ac in his deferred equity pre-marital the extent toas evidence producing for of discretion an abuse It was count. upon the rests marital of the similarly value treat to not court trial In proceeding. the dissolution marital in the equity Wife pre-marital 945 at N.E.2d Coyle, treat Marriage the different explain re or residence 767, 77O N.E.2d Neffle, 483 alloca that (citing recognizing Although ment. Neffle (1986)). traditionally a denied marital assets trans. (Ind.Ct.App.1985), tion re argument, discretion Notwithstanding Wife's sound to the matter left not us does before record must of the court, view this case in trial of the prop failed the division court trial that the redetermination establish apprais Two Because home. estate. marital marital erly value pre hearing: final credited apparently at the submitted als were account, pay Husband, in his deferred placed equity marital first, submitted pro must either on remand $74,000.00; the residence credit Wife vide Wife, the val placed second, submitted other or residence marital in the valua The trial $67,500.00. ue at so. to do its failure explain sup wise tion of evidence, and therefore by this ported Judgment Support II. Child it is not as discretion an abuse that contends next Wife effect logic against clearly support treating erred presented. evidence judgment as an asset of issue in raised Worsco concerned awarding it to Wife. She specifically ar- Warseo, whether a bankruptey trustee, gues that the trial court erred in even had a legal interest past collect due considering judgment as marital prop- owed to a parent custodial erty because judgment belonged not to who filed bankruptcy. In concluding that Wife as parent custodial but instead to her Warseo had no interest the delinquent child. Wife further maintains that assum- child support, the court held that child ing arguendo that judgment is an asset support arrearages are not property of the estate, of the marital the trial court erred parent, custodial and a trustee in bank- in its valuation of judgment because ruptey has no interest in them. there was no basis from which it could In excluding the arrearage from the conclude that judgment could ever be estate, the court determined as a collected. Wife therefore argues that the matter of law that arrearages are held for judgment has no value. children, and the parent custodial has Prior to the marriage, gave birth to no individual interest in the arrearage. son on January 1982 from a previous Applying such meaning here, we conclude relationship. The child's biological father that the trial court erred in determining was ordered pay child support, but the child support judgment was in- *5 failed to do so. At the time of the mar cludible as an asset of the marital estate. riage, the child was eleven years old, and Having determined that the child support Husband assumed father, the role of later Judgment is not an asset of the marriage, adopting the child in 1997. Both Husband we do not reach the issue of how to treat and Wife decided to take action to obtain the given questionable its collectibili- collection of the delinquent support obli ty. gation. On January 1998, the Howard sum, In we remand to the trial court Circuit Court entered an order in favor of with instructions for a redetermination of Wife reducing $17,675.00 the in delinquent the property division. remand, On the support to judgment. At the time of the trial court shall not include the sup- judgment, the biological father was incar port arrearage in the marital estate. With cerated in Kentucky, serving four life sen respect to the eredit pre-marital equity tences. Testimony at the final hearing in the Husband's pay account, deferred the revealed that he had a retirement plan trial court may provide either Wife with a from former employment Quali and that a similar credit for pre-marital the equity in fied Domestic (QUADRO) Relation Order the marital residence or justify its failure had been against obtained the retirement to do so. plan.1 expectation of parties the Reversed and remanded. that the judgment could be collected once the biological father receives his retire ROBB, J., concurs. ment; however, the plan retirement is of SULLIVAN, J., concurs separate with undetermined value. opinion. In first determining whether the child SULLIVAN, Judge, concurring. support judgment is an asset of the mari estate, tal we are bound the recent I concur in the remand with instructions decision of supreme court in v. Warsco to redetermine the distribution of Hambright, 762 (Ind.2002). N.E.2d 98 property to and that in light of 1. No such order is contained in the record before appeal. us on $13,900 mortgage, less $74,000 valuation Hambright, Warsco $60,100 rather have received mari- would in the Wife included not be arrearage $10,000 additional That $50,100. majority's than in the concur I also
tal estate. virtually 50- the distribution concerning make would issue resolution pre-marital Husband's treatment vis-&- pay account deferred in the equity failed to court hand the If the other in the equity the Wife's
vis $24,000 free initial her Wife give merely separately I write residence. $50,000in value clear, leave that would conclusion majority's disagree subject between distributable valuation that, "The trial then, In essence $13,900 mortgage. to the this supported residence received computation, under such con- To Op. at 1012. evidence...." plus $24,000 equity equivalent did trial court that the it is evident trary, $50,000. value, totaling $26,000 in current the residence. upon any valuation place mortgage balance remaining When af- necessarily this issue $64,000. Resolution worth a house added, she received distribution percentage feets $10,000 mother's to Wife's regard With assets between includable properly it as an considered loan, if the purported decree parties. re- equity, Wife to the offset additional approximate in an divide $74,000 subject to worth a house ceived of Husband. in favor to 55% 45% ration of Under mortgage. loan and mother's may well residence The valuation backwards, reasoning analysis, and this party. each awarded percentage alter Hus- approximate would I would reason, upon this For $74,000. band's upon a value place *6 re- for a decision Given distribution make its the marital and distribution caleulation therewith. in accordance award clarity the assets, purposes mar- home before bought upon the a valuation place court should $10,000 bor- including $40,000, riage ac- distribution residence, make its after the Shortly mother. from her rowed cordingly. At refinanced. house was value appraised the house time that $29,000 mortgage. subject to $53,000 was 9. Wife's Br. at
Appellant's $24,000. In 2000 approximately
therefore filed, refinanced the divorcee when BACA, Appellant-Plaintiff, Loretta $13,900. Husband's mortgage balance $74,000. valuation Prime, Inc., INC., PRIME, NEW pre- $67,500. Wife valuation Wife's Operators of Independent Contractor eval- used Husband's sumes Appellees-Defendants. Springfield, the court says uation, but setting the used Wife's clearly No. 89A01-0108-CV-304. $50,100. figure her at over house of Indiana. Appeals Court at to Wife straight distribution aOn 25, 2002. Feb. $13,900mortgage, plus a $50,100figure $64,000, be would house Husband's. than figures to Wife's closer use actually intended
If the