Opinion
24A-DC-1995
03-13-2025
Brandon D. Ritter, Appellant-Plaintiff v. Lyudmila M. Ritter, Appellee-Respondent
ATTORNEY FOR APPELLANT Denise F. Hayden Lacy Law Office, LLC Indianapolis, Indiana. ATTORNEY FOR APPELLEE Mark R. McKinney McKinney &Company Law Muncie, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Boone Superior Court The Honorable Matthew C. Kincaid, Judge Trial Court Cause No. 06D01-2308-DC-1059.
ATTORNEY FOR APPELLANT Denise F. Hayden Lacy Law Office, LLC Indianapolis, Indiana.
ATTORNEY FOR APPELLEE Mark R. McKinney McKinney &Company Law Muncie, Indiana.
Pyle and Kenworthy, Judges concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] In February of 2020, Brandon Ritter ("Husband") and Lyudmila Ritter ("Wife") married. A year prior, in April of 2019, Z.R. was born to the couple. On August 2, 2023, Husband petitioned for dissolution of the marriage. On February 9, 2024, Husband petitioned for shared custody of S.I., Wife's child from another relationship. Following the final dissolution hearings, the trial court denied Husband's request for shared physical custody of or visitation with S.I. The trial court ordered Husband to pay Wife one-half of the value of their marital home and, in exchange, Wife was to sign over the title to the mobile home. On appeal, Husband contends that (1) the trial court erred when it denied his request for visitation with S.I., (2) the trial court erred in failing to consider Wife's alleged dissipation of assets, and (3) the trial court erred in including the full value of the marital residence in the marital estate. Because we disagree with each of these contentions, we affirm.
Facts and Procedural History
[¶2] Husband and Wife began dating in 2017. Sometime before the couple began dating, S.I. was born to Wife. S.I. is not Husband's biological child. In September or October of 2017, Wife and S.I. moved into Husband's mobile home, which he had purchased in July of 2016 for $8000.00. Husband made the final payment toward the mobile home on January 10, 2017.
[¶3] Husband added Wife's name to the title of the mobile home at some point during the relationship. When Wife and S.I. moved into the home, "[i]t was in horrible condition." Tr. Vol. II p. 205. The carpets were "soaked through" with animal urine, there were "holes all over the walls[,]" and the rooms required new paint. Tr. Vol. II p. 205. Husband and Wife both contributed money and labor to renovating the mobile home.
[¶4] In April of 2019, Z.R. was born to the couple, and in February of 2020, Husband and Wife married. Husband petitioned for dissolution on August 2, 2023. A provisional hearing was held on August 23, 2023, after which, Wife was granted primary physical custody of Z.R., and the couple shared joint legal custody of Z.R. No provisional order was entered regarding the couple's shared debts. However, the trial court ordered Husband to "cease, continue to do the same, the using of marijuana[,]" and Wife to "cease, continue to do the same, expenditure on Fox Contractors and other untoward and similar uses of funds." Appellant's App. Vol. II p. 24. The trial court also provided "no comment" as to S.I.'s custody, stating "the court does not have jurisdiction over the sibling, but Mother has stated her intention to allow the siblings to stay together." Appellant's App. Vol. II p. 25.
[¶5] On February 9, 2024, Husband petitioned for shared custody of S.I. The final dissolution hearings were held on April 22, and May 8, 2024. At the final dissolution hearings, the trial court heard evidence relating to the children, marital assets and debts, and Wife's use of a mobile game which charged its services to the couple's joint bank account.
[¶6] Husband testified that the mobile home in which the couple had lived together was now worth approximately $11,000.00. Husband had also apparently contributed toward the couple's marital debt on two occasions, but thereafter had ceased to assist with the payment. Wife had paid toward the marital debt during the dissolution proceedings, and ultimately had entered the debt into a consolidation account, which resulted in a prospective reduction of the debt.
[¶7] In its dissolution order, the trial court denied Husband's request for shared custody of or visitation with S.I. The trial court did not enter any finding related to Wife's mobile gaming. It ordered Husband to pay Wife one-half of the value of the mobile home, less $1025.00 towards the outstanding debt of the parties, within 180 days of the order, and in exchange, Wife was ordered to sign over the title to the mobile home. The trial court's order further provided that if Husband failed to pay the requisite amount, the mobile home would be sold immediately and the proceeds divided equally between the parties.
Discussion and Decision
I. Standard of Review
[¶8] Where, as here, the trial court sua sponte enters specific findings of fact and conclusions, our standard of review is well-settled:
[T]he specific findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence
adduced at trial.
We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment.
Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility.Trust No. 6011, Lake Cnty. Trust Co. v. Heil's Haven Condos. Homeowners Ass'n, 967 N.E.2d 6, 14 (Ind.Ct.App. 2012), (internal citation omitted), trans. denied. II. Visitation with S.I.
[¶9] Husband first contends that "the trial court erred in not awarding [him] visitation with his stepdaughter as [Husband] had a significant relationship with the child and the court had the authority to enter that Order." Appellant's Br. p. 9. For her part, Wife argues that Husband "failed to properly raise the issue of visitation at trial," therefore waiving the argument of visitation. Appellee's Br. p. 8. We choose, however, to address this argument on the merits and conclude that Husband has failed to prove that it would be in S.I.'s best interests to award him visitation.
[¶10]
In matters of child custody and visitation, foremost consideration must be given to the best interests of the child. We will generally reverse child visitation decisions only upon a showing of a manifest abuse of discretion. We do not reweigh the evidence or reexamine the credibility of the witnesses. Instead, we view the
record in the light most favorable to the trial court's decision to determine whether the evidence and reasonable inferences therefrom support the trial court's ruling.Richardson v. Richardson, 34 N.E.3d 696, 701 (Ind.Ct.App. 2015) (internal citations and quotation omitted).
[¶11] "[P]arental rights are of constitutional dimension, and it is presumed that a fit parent acts in the child's best interests in making decisions concerning visitation with third parties." A.C. v. N.J., 1 N.E.3d 685, 697 (Ind.Ct.App. 2013) (citing Troxel v. Granville, 530 U.S. 57 (2000)). With regard to the presumption that a "fit parent's decision is in the best interests of the child," the trial court here found that Husband had not proven that he should receive any visitation with S.I.:
[Husband] has not satisfied his burden here. He has failed to prove, by clear and convincing evidence that [Wife] is not a fit parent, therefore the court must presume that she has acted in [S.I.]'s best interests. It is significant that [S.I.] has made no effort to contact [Husband] and in fact, has not even asked about him. [Husband] has offered no evidence that it is in [S.I.] 's best interests to require parenting time, at least no evidence to overcome the strong presumption in [Wife]'s favor. [Wife] should be encouraged to continue to permit [Husband] to spend time with [S.I.], however the court should not mandate any shared custody or parenting time.
Appellant's App. Vol. II p. 17.
[¶12] Wife testified at the dissolution hearing that she was the primary caregiver to S.I. and that Husband had provided some childcare to S.I. before the couple had moved in together, but that her parents had provided the majority of the support at that time. Wife testified that after she had moved in with Husband, he had begun to share childcare responsibilities with Wife's parents more equally, providing childcare to S.I. ten percent more than her parents had. The trial court also heard testimony that S.I. had not seen, asked to see, or called Husband since Husband had filed the petition for shared custody of S.I. in February of 2024. Furthermore, Wife testified, "I am not comfortable with [Husband] spending time with [S.I.] because he tend[s] to put the children in the middle," and that Husband "does not keep the adult conversation between us." Tr. Vol. II p. 233.
[¶13] The above-described evidence is sufficient to support the trial court's finding that it was not in S.I.'s best interest to award Husband shared custody of or parenting time with S.I. While it may even be true that S.I. had once called Husband "Dad" and that Husband had provided childcare to S.I. while Wife was at work during the marriage, Husband's arguments with regard to visitation amount to nothing more than an invitation to reweigh the evidence, which we will not do. See Richardson, 34 N.E.3d at 701. We cannot say, in light of the evidence most favorable to the trial court's decision, that the trial court erred when it denied Husband's request for visitation with S.I. See id.
III. Alleged Dissipation
[¶14] Husband next contends that the trial court "erred in failing to consider Wife's dissipation of assets with her online game expenditures[.]" Appellant's Br. p. 9. Husband specifically contends that "[t]o fail to provide Husband with some remuneration from Wife's frivolous spending is clearly against the logic of the evidence received." Appellant's Br. p. 15.
[¶15]
Factors that a trial court may consider in determining whether assets have been dissipated include: (1) evidence of intent to hide, divert or deplete the asset; (2) whether the expenditure was made for a purpose entirely unrelated to the marriage; (3) the remoteness in time to the filing of the dissolution petition; and (4) whether the expenditure was excessive or de minimis. However, whether dissipation had occurred cannot be determined by applying only one of these factors. The proper inquiry requires the trial court to weigh the various considerations. Moreover, while intent is not an essential element of dissipation, intent to hide, divert, or otherwise deplete the marital estate is relevant. Additionally, the fact that one spouse or the marriage itself does not benefit directly from an expenditure does not, standing alone, require a finding that a dissipation of marital assets has occurred.Bertholet v. Bertholet, 725 N.E.2d 487, 499 (Ind.Ct.App. 2000) (internal citations omitted). Indiana Code section 31-15-7-5(4) directs the trial court to consider "[t]he conduct of the parties during the marriage as related to the ... dissipation of their property." However,
transactions which are remote in time and effect, and where many years of marriage have intervened, may be deemed insignificant, while transactions which occur during the breakdown of the marriage, just prior to filing a petition or during the pendency of an action, may require heightened scrutiny.
When considering a spouse's claim of dissipation, the trial court should exercise caution in determining that an asset has been wasted or misused. Moreover, the non-dissipating party's participation in or consent to the expenditure is a relevant consideration.Bertholet, 725 N.E.2d at 499-500 (internal citations and quotation omitted). Here, the record reveals that Wife had played an online mobile game during the marriage, "in order to stay awake during work, in order to get away from this world." Tr. Vol. II p. 224. The charges to the mobile game, which between November of 2022 and June of 2023, totaled more than $46,000.00, were taken from the couple's joint bank account. Wife testified that her gaming habit had lasted a "couple of years[,]" but that there had never been any occasion where the charges from the game had caused any overdrafts. Tr. Vol. II p. 224. She further testified that she had received an inheritance of over $20,000.00, which had "paid off" the gaming-related charges. Tr. Vol. II p. 225.
[¶16] Husband testified that, after he had confronted Wife about the game in June of 2023, there had been no more charges related to the game. Nothing in the record indicates that Wife had attempted to hide the expenditures from the game, which had been charged to the couple's joint account. Furthermore, the trial court could have reasonably concluded that Wife's use of the mobile game in order to "stay awake" during her overnight work had been, to some extent, beneficial to the marriage. In light of the inheritance which Wife purported to have received, we cannot conclude that Wife's expenditures on the mobile game were as excessive as Husband claims. Based on the foregoing, we find that the evidence supported the trial court's determination that Wife had not dissipated marital assets.
IV. Division of Value of Marital Home
[¶17] Husband contends that the trial court erred in "including the full value of the marital residence to the marital estate" because he had purchased the marital residence prior to the marriage Appellant's Br. p. 16. In relevant part, the trial court found that Husband "put [Wife]'s name on the title of mobile home he was living in when they moved in together[,]" and "[t]he parties renovated the mobile home, making repairs, painting[,] and installing new floors. The mobile home is worth approximately $11,000.00." Appellant's App. Vol. II p. 12.
We note that Indiana Code section 31-15-7-4 provides that, in an action for dissolution of marriage, the trial court "shall divide the property of the parties, whether: (1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right[] ... or (3) acquired by their joint efforts." Thus, contrary to Husband's contentions, the trial court was within its rights to include the marital home which he had apparently owned before the marriage in the marital estate.
[¶18] The trial court ordered Husband to pay Wife one-half of the value of the mobile home, less $1025.00 towards the outstanding debt of the parties, within 180 days of the order, and in exchange, Wife was ordered to sign over the title to the mobile home. Husband contends that, under Indiana Code section 31-15-75, the trial court should have considered the "contribution of each spouse to the acquisition of the property and the extent to which property was acquired by each spouse prior to the marriage." Appellant's Br. p. 16. However, it is clear that the trial court did consider such evidence.
[¶19] At the final dissolution hearing, Husband testified and put a note into evidence indicating that he had made the final payment to the mobile home in January of 2017. He also testified that in September or October of 2017, Wife and S.I. had moved into the mobile home. Wife, however, testified that she had believed Husband was "still making payments" on the mobile home when she moved in. Tr. Vol. II p. 205. Nevertheless, the record shows that Husband had added Wife's name to the title of the mobile home at some point during their relationship. When Wife and S.I. moved into the home, "[i]t was in horrible condition." Tr. Vol. II p. 205. The carpets had been "soaked through" with animal urine, there had been "holes all over the walls[,]" and the rooms had required new paint. Tr. Vol. II p. 205. Husband and Wife both contributed to renovating the mobile home. Wife testified that she had "work[ed] on fixing the trailer up once [she] moved in[.]" Tr. Vol. II p. 207. She testified that she had applied putty to the walls of the mobile home and painted the walls, while Husband had installed new floors.
[¶20] The above-described evidence was sufficient to support the trial court's findings relating to the marital residence. We cannot say that the trial court failed to give due consideration to the various contributions made by both Husband and Wife to the property at issue. "While it is true that the trial court must consider a spouse's contribution of prior acquired property, that is but one factor for review and is entitled to no special weight." Bertholet, 725 N.E.2d at 496. Therefore, the trial court did not err in its order regarding the mobile home. Husband's argument amounts to nothing more than an invitation to reweigh the evidence, which we will not do See Trust No. 6011, 967 N.E.2d at 14.
To the extent that Husband claims that the length of the marriage requires remand with regard to the marital home, we are unpersuaded. The case which Husband cites, Dahlin v. Dahlin, 397 N.E.2d 606 (Ind.Ct.App. 1979), is readily distinguishable from this case. In Dahlin, this court reversed a division of property due to several factors, including the short duration of the marriage, the substantial property and financial contributions of the husband, the extremely limited contribution of the wife, and the fact of the husband's imminent retirement on a modest pension. 397 N.E.2d at 608. Although Wife may not have contributed to the acquisition of the mobile home here, she had substantially contributed to renovations of the home, and it appears that Husband and Wife had both substantially contributed to the earnings of the family and home.
[¶21] We affirm the judgment of the trial court.
Pyle, J., and Kenworthy, J., concur.