*1 imposed 'garnishee' on proceedings stay Bowyer's writ of execution on the supplemental. funds as entered Bowyer court, primary purpose

The remand this garnishment Bowyer of the case to the court for chapter further proceedings statutes 34-1-11 preserve is to not inconsistent with this property opinion. of the prior defendant judgment and to secure eventual re- PART, AFFIRMED IN REVERSED IN covery by plaintiff. pro- Garnishee PART, AND REMANDED. ceedings in proceedings supplemental, however, subject are property intended to RUCKER, JJ., BAKER and concur. in the hands of a party payment third judgment against the defendant. The present rules controlling garnishment and

proceedings supplemental are the direct

descendants of two statutory distinct

sources.... prejudgment The garnish ment ... statute was never considered to be the equitable source of the lien in pro- ceedings supplemental. Further, we are REESE, Appellant- Theodore J. convinced prejudgment garnish- Respondent, setting

ment greater demands concern and protection garnishee. such, for the As v. panoply of applicable pre- restrictions REESE, Appellee-Petitioner. Bonnie M.

judgment garnishment attachment No. proceedings applicable is not 75A03-9502-CV-47. equita- to the ble arising present lien proceedings Appeals Court of of Indiana. supplemental." Id.; Oct. see Corp. 1996. McClure Oil Whiteford Lines, Truck 1325 n. 1 (Ind.Ct.App.1994).

The mere fact appellees that the ob prejudgment tained a order did not create a lien in their favor. Until the time that appellees reduced their claim judgment to a proceedings initiated supplemental, they

did possess a lien.7 Radiotelephone, See such, N.E.2d at 240. As Bowyer pos

sessed the against valid lien gar Therefore, nished funds. Bowyer erred staying Bowyer's writ of execution on the fund.8

For foregoing reasons, we affirm the jurisdiction of the IDEM court to enter a

prejudgment garnishment order, reverse the brief, appellees

7. In their claim Finally, that on Janu- Bowyer appealed we note that also - 30, 1996, ary IDEM received a default IDEM court's denial of its motion to intervene $3,175,000 against RLG for and that the IDEM right pursuant IDEM action as a matter of $250,- court ordered the clerk to IDEM the 24(A)(2). Bowyer TR. maintained that had it partial 000 at issue here in satisfaction of that been allowed to intervene, it could have present- proceedings Because the record of challenge validity ed its to the prejudgment was filed with this court in November of 1995, garnishment order. already Because we have the However, support record does not such an assertion. claims, Bowyer's addressed we need not reach assuming even that IDEM obtained a the merits of this issue. judgment, default it did not do so until after Bowyer proceedings supplemental. had filed

OPINION STATON,Judge. ("Theodore") Reese appeals J. dissolving his mar- *3 ("Bonnie").

riage to Bonnie M. Reese He presents four issues for our review which we consolidate and restate as follows: I. Whether the trial court abused its in utilizing discretion an valua-

tion date for a business whose value during pendency

declined proceedings. dissolution by II. Whetherthe trial court erred in cluding proceeds from the noncom- petition agreement in the marital es tate.

IIL. Whether the court erred in or- dering Theodore to a substantial portion of Bonnie's fees. in part, part, We affirm reverse in and remand.1 Bonnie and Theodore were married in 1964 children, emancipated and had two an son daughter attending college. and a corporation, Theodore founded a Cadence ("Cadence"), Energy, Environmental Inc. engaged disposal. which in hazardous waste corporation entirely Stock was owned Bonnie, owning Theodore and each 90% respectively. and 10% processes Cadence hazardous waste de- Specifically, rived fuels. Cadence takes haz- processes 'and ardous waste it into fuel companies. burned cement These cement companies primary are Cadenee's customers. 1980's, Until the late Cadence had the ability liquid process hazardous wastes. Fickle, Rusthoven, Stanley C. Peter J. Thereafter, developed, patented, Cadence Buck, Thornburg, Barnes & James A. Dar- implemented technology new which in- Duchon, ryn Indianapolis, appellant, L. for volved solid hazardous wastes. This innova- respondent. growth, tion caused tremendous sales increasing Cadenee's net income to over $3.7 Stober, Kraege, & An- Wilson S. Goodin million Soshnick, Daniels, Z. Baker drew & India- Nichols, napolis, comprises David the bulk of the marital J. Cadence Wallsmith Weaver, Knox, appellee Wallsmith & estate and its valuation was a contested issue petitioner. present- at trial. Bonnie and Theodore both terminated, plete jurisdiction 1. Bonnie also filed a motion for a determination and our we remand jurisdiction of the trial court's to divide marital this case to the trial court for a determination of tax liabilities which have arisen since the trial the issue raised in the motion. appeal court's Because the com- is day hear Following an eleven dissolution testimony regarding the value expert ed consisted of evidence ing, the bulk of which 80, 1992 valuation Using a June Cadence. Cadence, the trial court entered regarding firm, accounting Mar- date, Peat of law. The findings of fact and conclusions Using wick, at million. $7.8 valued Cadence alia, found, that the net worth inter date, ac- but different valuation the same $27,085,010. The val estate firm, accounting counting approach, Bonnie's proceeds included Cadence and the uation at Young, valued the business $14 Ernst less taxes. The from the Petro-Chem sale million. proceeds received for the covenant valuation, in the marital estate. compete and as a result were included Following this $16,769,- regulations,2 federal environmental The trial court awarded Theodore certain $10,815,559, plus pay and Bonnie a cash trial, Prior to declined. Cadence's $3,336,946, in each which resulted ment Marwick, a new valuation of prepared Peat *4 addition, $13,542,505.4 In party receiving using a valuation date of June judgment of trial court deferred on the issue 30, 1993, at million. valued Cadence $6 which attorney litiga request for fees and Bonnie's rejected the valuations of trial court The expenses. tion adopted the by experts and fered Theodore's 30, a motion to correct error assigned Theodore filed 1992. It Ca as of June value (1) petitioned the court: to rede wherein he million. a value of dence $14 using value of a June termine the Cadence Theodore, Cadence, along to addition date, 30, assign a Cadence 1998 valuation ("Foster") an founded with Norman Foster million, mari and then divide the value of $6 1980's, in Petro- company other (2) alternatively, open equally; or tal estate ("Petro-Chem"). Pe- Processing, Inc. Chem judgment pursuant to Ind. Trial Rule tro-Chem, Michigan, pro in located Detroit, 52(B), testimony on the value take additional for Cadence. After hazardous wastes cessed grant pursuant a trial to of Cadence or new dissolution, petition her for Bonnie filed 59(J) Trial in order for the court to Ind. Rule stock in Petro-C Theodore sold Foster his perfor Cadence's recent financial consider result, Theodore received As a hem.3 value, mance, assign a and divide the - $7,850,000 millionfor a for his stock and $3.6 (8) alternatively, equally; order estate or proceeds for compete. The equally covenant not to in the mar Cadence sold and divided Inp.CopE® 31-1-11.5-11(b)(8) § not to com pursuant stock and the covenant to both the ital estate (1998) The trial court denied in marital estate and pete were included .5 motion. subjected Theodore's distribution. ("EPA") except writing respecting aspects Agency all of the sale Protection

2. The Environmental compete covenant not to the characterization of promulgated and Industrial Furnace the Boiler property." proceeds as marital regulations with the federal Re- in accordance Recovery Act. See 40 Record at 35. source Conservation rules, §§ effective 266.100 to .112. These C.F.R. by payment was 4. The cash to Bonnie reduced 1992, burning August of hazardous affected the $440,011 capital improvements operat- and for directly impact- furnaces and waste in industrial by ing paid to Bonnie's horse farm subsidies burning fuels ed the of hazardous waste derived during the course of the dissolution Theodore result, companies' cement in cement kilns. As a Thus, Bonnie received a total cash action. greatly capacity was reduced to burn this fuel $2,786,935 by secured a lien on Theo- award of detrimentally was affect- and Cadence's business dore's residence. ed. alleged that the trial court's balance 5. He also petition dissolution in Octo- 3. Bonnie filed a for changed the marital assets had as sheet of temporary restraining requested 1991 and ber interest, taxes, payment of of result of the accrual granted by the trial court. It order which was agreement parties or court and of "transferring, parties encum- restrained the from mutually agreed parties to a resolu- order. The bering, concealing any way disposing in of or allegation regarding tion his second of error property except in the usual course of business Agreed Entry entered an and Or- the trial court securities, Record at 18. or for the necessities of life." der which revalued the marketable However, permitted Theodore's the trial court brokerage As a cash, account balances. finding that the sale sale of his Petro-Chem stock revaluation, cash consequence not be deemed a violation of this Court's obligation ""shall $2,986,- increased installment agree restraining long parties as the 714.50. order so findings judgment had been filed commene- determine whether the After the record erroneous, jur- clearly suspended only its are we consider ing appeal, this this court to allow the trial court decide evidence favorable and all isdiction therefrom, attorney grant- flowing of fees. The trial court reasonable inferences issue part part and denied Bonnie's re- we will not ed reweigh the evidence or assess expenses. quest credibility. fees and The witness Id. $339,761.21

court ordered Theodore to expenses, fees and and Bonnie Bonnie's action, In a dissolution the trial court $106,424.96. pay the This court balance determining has broad discretion in value jurisdiction appeal then resumed and the property, and its valuation will be continued. Quillen disturbed for an abuse discretion. (Ind.1996). Quillen, If support there is sufficient evidence to decision, no abuse of discretion Valuation occurred. Id. First, alleges that the abused its discretion when it failed to use the trial court The also has discretion purpose 1993 valuation date for the June choosing the date on which to value the determining part value as a Cadenee's property. Id. at It can 102-103. choose *5 that, Theodore notes the estate. filing date between the date of the of the Inp.Copm 31-l-11.5-1l1(c) § pursuant petition for dissolution and the date of the (1993), presume the trial court "shall that an hearing. Although Id. at 103. the date se property division of the marital be- lected for the valuation has the effect of just parties and reasonable." tween the is allocating change the risk of value be Cadence, The trial court's over-valuation of parties, tween the this allocation of risk is argues, unequal he results an division of entrusted to the discretion of the trial court. the marital estate. early Id. The choice of an valuation date for an asset which decreases in value is not

We note at the outset that both necessarily an abuse discretion. Id. We requested Bonnie and Theodore the trial will reverse the trial court's decision as to a findings court to enter of fact and conclusions only clearly against if it valuation date is the party requested specific of law. has When logic and of the facts and cireum- effect findings pur of fact and conclusions thereon trial court. Id. at 102. stances before the 52(A), reviewing to Ind. Trial the suant Rule any judgment court cannot affirm the on rather, Here, 30, basis;

legal this must deter the 1992 valuations Court June by findings performed parties upon mine whether the trial court's are both relied a busi judgment. prepared by support sufficient to the Vander ness forecast Cadence execu County burgh Bd. Comm'rs v. Rittien tives. This business forecast took into ac house, 663, regulations (Ind.Ct.App. 575 N.E.2d 665 count the new environmental 1991), reviewing judg expected impact upon In trans. denied. the their Cadenee's busi ment, presented of the we must first determine whether the ness. Theodore evidence second, supports findings regulations presented at trial and also evidence the new findings support impact regula whether the the evidence that the of the new greater anticipated, causing Id. The will be reversed tions was than erroneous, ie., drastically by clearly judg drop when when the value to June Cadence's by setting unsupported findings ment is the of fact the valuation date for Cadence, acknowledged the trial court the findings. and conclusions entered on the De DeHaan, regulations impact val Haan v. new and their on the However, Findings denied. ue of it determined that (Ind.Ct.App.1991), trans. Cadence. change clearly the should bear the risk of the fact are erroneous when record Theodore complete inferences he had control

lacks evidence reasonable value because company peti and after the support from the evidence to them. Id. To both before Here, not to signed the covenant had filed. He alone was tion for dissolution conjunction the sale of his compete in with to retain the whether power to decide proceeds The total dropped in Petro-Chem. interest it before the value company or sell $11,450,000. in the There is evidence were control of Cadence is too low.6 Theodore's value of his interest record that record evidence. amply supported million. approximately was $11 business in its discretion The trial court determined goal that Theodore's There is also evidence value in Cadenee's risk of a decline that the for between $10 was to sell the business Theodore, because he borne should be all million. This evidence million and $12 thus, it an company; chose controlled that the non-com- supports the determination there is evi early date. Because valuation protect goodwill pete agreement was to support in the record dence to the con- the business. Absent evidence say cannot that company, we control of noncompete agreement represents trary, an valuation court's choice of the trial includ- company, which is goodwill logic and effect of clearly against the date is Berger, supra, at marital estate. able Quillen, supra, it. cireumstances before by signing the argues that 383. Theodore that Accordingly, we conclude at 102. compete foregoing covenant not he early valuation date choice of an trial court's proceeds thus opportunities, and was not an abuse discretion.7 non-compete agreement attributable to the However, this is represent future income. reweigh the evidence simply an invitation to II. DeHaan, supra, at not do. which we will Compete trial court reviewed the evidence Covenant Not 1320. The proceeds that the of the sale and determined contends that the Theodore next represent future income which was did not proceeds determination excludable from the marital estate. Because compete from the covenant not he received support the trial court's *6 there is evidence to subject property and to distri were marital findings support judg- findings and the the argument error. bution was ment, clearly erroneous. the is not proceeds fails. Theodore characterizes Accordingly, conclude that the trial Id. we compete as future the covenant not to of determining in that court did not err spouse are earnings of one income. Future sale proceeds from the Petro-Chem entire subject in a to division property not marital property. marital constituted Bressler, v. proceeding. Bressler dissolution 392, (Ind.Ct.App.1992). 397 601 N.E.2d IIL However, not to com a restrictive covenant Attorney Fees conjunction signed in with the pete which is Finally, argues that goodwill of represents of a business sale in trial its discretion order to the con court abused that business absent evidence 378, pay attorney ing 383 him to Bonnie's fees trary. Berger Berger, v. 648 N.E.2d $389,761.21. In dissolution and goodwill amount of (Ind.Ct.App.1995). The value of the proceedings, trial court post-dissolution is included in the marital estate. of a business (Ind. may party pay a to a reasonable Cleary, 853 order Cleary v. Inp.Code Ct.App.1991). attorney § amount for fees. 81-1- purchase offer. If a sale of Cadence argues was not free to sell the wait for 6. Theodore that he - restraining company put or- option, due to the busi- he could have best prohibiting dissipation of marital assets. der up and solicited offers. ness for sale However, to sell the if Theodore had wished simply requested permis- company he could have argues court also that the trial 7. Theodore already which had sion from the trial court denying to its discretion his motion abused in willingness approve transac- shown its such error. Because we correct approval sale. of the Petro-Chem determine tions its of risk was valuation date and allocation argues finding that this is errone- Theodore also discretion, there was no error not an abuse of any evidence of offers to ous because there is no purchase did not have to correct. Cadence. Theodore

193 11.5-16(a) (1998). fees, attorney part, awarding part, In Affirmed reversed has broad discretion. Selke v. remanded. the trial court (Ind.1992).

Selke, An N.E.2d 102 600 proper one award of fees is when BAKER, J., concurs. party superior position pay in a the fees is HOFFMAN, J., in part, concurs See, eg., Marriage party. the other In re of part opinion. dissents in with (Ind.Ct.App.1995), Pulley, 652 N.E.2d 528 of (no when trans. denied abuse discretion HOFFMAN, Judge, concurring and dis- greater share marital husband received senting. wife); earned twice as much as estate and except I portion concur to the of the ma- (Ind.Ct. Millar, Millar v. 581 N.E.2d 986 jority opinionwhich reverses the trial court's denied, summarily aff'd, App.1991), reh. Bonnie, attorney's I award fees to to which (Ind.1992) (no abuse of discre N.E.2d (1992 § dissent. IND. CODE 31-1-11.5-16 disparity tion when there was a in income Supp.) provides, pertinent part: potential parties). and resources available will reverse the court's decision time, We (a) may The court from to time order clearly against logic if the award is party a reasonable amount for the effect of the facts and cireumstances before party maintaining cost to the other fees, assessing attorney Id. In the court. defending proceeding chap- this under may the court consider such factors as the fees, attorneys' including ter and for sums parties, earning relative resources of the legal services rendered and costs in- ability parties, party and which initi prior curred to the commencement of the Selke, supra. ated the action. proceedings entry or after

may paid

The court amount order the to be directly attorney, may to the who enforce

Here, the evidence indicates that the the order in his name. parties each received amounts of the Theodore's main asset is estate. Ca enjoys A trial court broad discretion dence, variety while Bonnie received a wide assessing attorneys' fees in dissolution cases. cash, brokerage including of assets accounts (Ind.1996). Quillen Quillen, 671 N.E.2d 98 Thus, and marketable securities. Bonnie's considering In whether to make such an liquid resources are more and more diversi amount, appropriate award and the the trial addition, fied than Theodore's assets. may including: consider factors although employed, through Bonnie is parties, earning resources of the relative *7 investment of the marital conservative assets ability parties, superiority of the the and alone, assets, depleting without those she has funds, achieved, availability of the result the $600,000 earning potential annually. Bon estate, difficulty of the and the of the size nie also received substantial real estate hold Riddle, Riddle v. 566 issues. See N.E.2d ings, earning which further increase her abil (Ind.Ct.App.1991); Canaday Canaday, v. 83 contrast, ity. Theodore received one (Ind.Ct.App.1984). financially struggling which is and does asset pay The trial court to a ordered Theodore enjoy security benefits of diversifica the portion attorney's fees and ex- Bonnie's support a tion. These factors do not deter penses paid in amount as the exact he had superior posi mination that Theodore is a purposes during pen- advances for such attorney pay tion to Bonnie's fees. Because dency proceedings. was of the Theodore attorney against the award of fees is $339,761.21, pay to and Bonnie was ordered logic and of the before effect cireumstances $106,424.96. pay ordered balance court, the trial we conclude that the trial parties noted that the had The court's order ordering court abused its discretion in Theo expenses agreed that the fees and were nec- Selke, pay attorney Bonnie's dore fees. essary and reasonable. supra, Accordingly, at 102. we reverse Here, majority respect trial with reassessed the evidence court's order light in a most favorable to Theodore fees. its dis- trial court abused

conclude McKAY, pay portion Marriage a ordering him to In re the John cretion attorney's expenses. Appellant-Respondent, fees Bonnie's trial court di- acknowledging that While majority equally, marital assets vided the (now Cooke), Stephanie McKAY upon Theodore based spins a tale of woe for Appellee-Petitioner. Suggesting diversity in his assets. a lack of strategy for Bonnie which an investment No. 34A02-9512-CV-763. assets, pre- to maximize her would allow her fees, can her own sumably Appeals so that she Indiana. Court of of review or satisfy our standard does not 18, 1996. Oct. required defer- adequately demonstrate determination. for the trial court's ence erroneously majority supplants

The findings with its own. The that Theodore has a specifically found earnings expectation substantially greater Further, the trial court's than does Bonnie. regarding the valuation of the assets findings healthy entity explicitly found worth, including net cash with substantial million approximate amount of five dol- salary court found that Theodore's lars. The one mil- and bonus from Cadence exceeded Further, required the court lion dollars. shop- Theodore for a that Bonnie reimburse Paris, ping trip a cruise and various items children, repre- but purchased for the she solely. gifts The marital sented as from her complexity of sizeable. That the estate was litigation required ex- the issues substantial determina- penses is clear. The trial court's upon tion is based substantial evidence factors. consideration of the relevant above, trial court's order As noted attorney's allowing portion of her Bonnie sum of the expenses fees and during pen- advances made appellate dency action. Because the reweigh does not the evidence tribunal *8 statutory authority awarding attor- ney's prohibit those with fees does not receiving paying distributions from asset fees, attorney's I wouldvote to affirm the trial court's decision.