Opinion
23A-DC-3022
08-22-2024
Robert Earl Blagrave, Appellant v. Shelley Ann Blagrave, Appellee
ATTORNEYS FOR APPELLANT Jeffrey B. Kolb J. David Roellgen Charles E. Traylor Kolb Roellgen &Traylor LLP Vincennes, Indiana Abraham L. Ramsey - Certified Legal Intern Indiana University Maurer School of Law Bloomington, Indiana ATTORNEY FOR APPELLEE Rodney T. Sarkovics Sarkovics Law Carmel, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Knox Circuit Court The Honorable Monica C. Gilmore, Judge Trial Court Cause No. 42C01-1908-DC-117
ATTORNEYS FOR APPELLANT Jeffrey B. Kolb J. David Roellgen Charles E. Traylor Kolb Roellgen &Traylor LLP Vincennes, Indiana
Abraham L. Ramsey - Certified Legal Intern Indiana University Maurer School of Law Bloomington, Indiana
ATTORNEY FOR APPELLEE Rodney T. Sarkovics Sarkovics Law Carmel, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE.
Case Summary
[¶ 1] Robert Blagrave ("Husband") appeals an order entered on remand after this Court instructed the dissolution court to value and distribute between Husband and Shelley Blagrave ("Wife") their respective interests in an entity called REB Rentals and shares of stock of Adams-Meyer and also to consider the appropriate distribution percentages to be applied to the marital estate, with a presumption of an equal split. We affirm in part, reverse in part, and remand with instructions to the trial court to divide between the parties their business interests, which consists of a bank account, sums due on a contract, and parcels of real estate. Consistent with the prior opinion of this Court in this matter, the parties shall not relitigate the issues of personal property allocation, a claimed 20% ownership of REB Rentals by the parties' children, a purported business debt to Paul Meyer, an award of fees to Wife, or a claim for payment of expenses while both parties occupied the marital residence. Because certain business assets were already included in the first property division order, the dissolution court is to make necessary adjustments to avoid duplication and effect the percentage distribution determined by the dissolution court to be appropriate. To that end, we instruct the trial court to begin the consideration with the presumption of an even split.
Although the parties and orders do not reference an entity known as Adams-Meyer, LLC, it is uncontested that Adams-Meyer is a limited liability corporation.
Issues
[¶ 2] Husband purportedly articulates seven issues for review, but his argument does not correspond to those issues. As best we can discern Husband's contentions, he raises the following re-stated issues:
Husband's brief employs a format in which he divides his Argument section, labeled as V., into paragraphs labeled as 1. through 6., with further divisions into sub-paragraphs: 1.1 through 1.2; 2.1 through 2.4.3; 3.1 through 3.4; and 6.1 through 6.5 (without subdivisions to paragraphs 4 and 5). Within these paragraphs and sub-paragraphs, the discussion does not substantively or by designation correspond to the lengthy, argumentative "issues" set forth in the Statement of Issues section of the brief.
I. Whether the dissolution court on remand was bound by the law of the case doctrine to include 100% of REB Rentals in the marital estate or whether it could consider only 80% as a marital asset, consistent with a void order on a motion to correct error;
II. Whether the dissolution court abused its discretion in the admission of evidence by excluding evidence proffered to show that Wife had acknowledged the existence of business loans from Paul Meyer to REB Rentals;
III. Whether the division of business assets complied with the instruction to, on remand, value and divide the parties' respective membership interests in REB Rentals and the shares of Adams-Meyer stock;
IV. Whether the dissolution court erred by ignoring the tax consequences of future installment payments and a balloon payment;
V. Whether the dissolution court erred by clarifying that Husband is to pay Wife's attorney's fees; and
VI. Whether some assets were twice distributed. Facts and Procedural History
[¶ 3] The underlying facts were recited in the first appeal as follows:
Husband and Wife were married in 1982 and had two children of the marriage, both of whom were adults at the time of the dissolution proceedings.
Prior to their marriage, Husband worked at Adams-Meyer, Inc. During the marriage, Husband purchased Adams-Meyer and owned and operated it. Wife worked at Old National Bank for twenty-three years; however, from about 2003 to 2019 she also worked at Adams-Meyer.
In June 2019, Adams-Meyer was sold to another company, Pigg Implement, in two phases. In the first phase, Pigg Implement agreed to purchase all machinery, equipment, and tangible assets of Adams-Meyer for an immediate payment of $264,500. In the second phase, Pigg Implement agreed to purchase the real property and certain personal property from Adams-Meyer for $400,000, payable at $2,850 per month over ten years at a 4.5% annual interest rate and with a $196,617.16-balloon payment due on May 1, 2029. At the time Wife filed her petition for dissolution, Adams-Meyer still held a Regions bank account in the amount of $183,136.72.
The parties acquired several parcels of real property during the marriage. Their real property assets included a 50.67-acre tract of land in Knox County. On that land, the parties built their marital residence on 3.67 acres, which residence the trial court later found to have a value of $400,000. The parties refer to the remaining 47 acres as the Farm; on the Farm, they have placed a manufactured residence, which they rent to a third party. The trial court later found the Farm to have a value of $365,000.
During the marriage, title to the Farm and several other real-property assets of the marriage were transferred into the name of a company, REB Rentals, LLC. Husband created REB Rentals to hold title to those marital real properties, and, according to his later testimony but unsupported by any documentation, Husband created REB Rentals such that he and Wife held 80% of the company and their children collectively held the remaining 20%. The trial court later found that Husband had control over all assets and transactions of REB Rentals, that he used funds from REB Rentals' accounts for personal and marital expenses, and that all assets of REB Rentals were marital assets. At the time Wife filed her petition for dissolution, REB Rentals had a checking account in the amount of $46,847.45.
In August 2019, Wife filed her petition for dissolution of the marriage. Thereafter, the trial court held several days of factfinding hearings. At those hearings, Wife introduced a handwritten note from Husband, from approximately 2014, in which he had identified and estimated the value of several firearms in the marital residence to be about $14,705. In its dissolution decree, the court awarded those firearms and numerous other items of personal property to Husband, but the court did not specifically find a value for the firearms or the other items of personal property. Likewise, the court awarded numerous items of personal property to Wife without finding a value to any of those items. Instead, the court found that "the value of the personal property to be retained by the parties is
essentially equal." Appellant's App. Vol. 2, p. 28. Also in its decree, the court awarded a boat to Husband that he had acquired with a friend, Paul Meyer, following Wife's petition for dissolution. The court also awarded to Husband a TD Ameritrade account in the amount of $30,043.
Further, Husband argued to the trial court that he had received several loans from Meyer during the marriage, and that those loans should be considered liabilities of the marital estate. But the trial court found differently, stating that "there is no reasonable" and no "sincere expectation" that those purported loans were ever to be paid back by Husband. Id. at 28-29. The court then unequally divided the marital estate such that Husband received approximately 61% of the identified assets of the estate while Wife received 39%. In doing so, the trial court stated that the unequal division of the estate was attributable to Meyer's gifts to Husband. The court then ordered Husband to pay $33,620 of Wife's attorney's fees, mediation fees, and appraiser fees based in part on Husband's greater earning power.Blagrave v. Blagrave, 2023 WL 1157360, 21A-DC-2330, at *2-5 (Ind.Ct.App. Jan. 31, 2023) (hereinafter, "Blagrave I.")
[¶ 4] In the first appeal, this Court addressed nine issues, concluding that some marital assets were omitted from the trial court's distribution of marital assets.
First, the Court observed that the parties agreed the dissolution decree failed to distribute the 47-acre Farm, valued at $365,000.00, an REB Rentals checking account, valued at $46,847.45, and the Adams-Meyer bank account at Regions Bank, with a value of $183,136.72. See id. at 7. Husband argued that he and Wife owned only 80% of REB Rentals (with 70% his) and their children collectively owned the other 20%, but he did not otherwise challenge the trial court's valuation. This Court concluded that the trial court did not clearly err when it found that Husband and Wife held a 100% membership in REB rentals. Second, based upon the agreement of the parties, this Court reversed the inclusion of a boat in the marital estate. See id. at 8.
[¶ 5] Third, this Court acknowledged the parties' agreement that the dissolution court had failed to include vested future payments from the sale of Adams-Meyer in the marital estate, but also acknowledged that there was a "dispute of fact as to the total value of the remaining payments under that contract." Id. at 9. Husband's valuation argument was partially premised upon the claim of only 80% ownership, rejected by the trial court and affirmed by this Court. Wife argued that valuation of the remaining payments should be determined upon a "present value, tax-effected analysis," and Husband agreed with this methodology of valuation. Id. The trial court was instructed to "value and divide the parties' shares of Adams-Meyer stock accordingly, the remaining assets of which appear to be the Adams-Meyer Regions bank account and the remaining stream of payments from Pigg Implement." Id. at 10. As to the fourth issue, valuation of a TD Ameritrade account, this Court concluded that Wife had invited any error. Addressing a fifth issue, this Court found no error in the "essentially equal" distribution of personal property. Id.
[¶ 6] Sixth, this Court affirmed the dissolution court's omission from the marital estate of "purported loans Husband owed to Meyer." Id. at 12. This Court observed that the dissolution court had, in effect, found Husband's testimony on this issue to be lacking in credibility. The Court reiterated that the role of this Court does not include reassessment of credibility. No error was found on the issue, nor upon the trial court's determination that Husband would not be credited for payment of expenses while he lived in the marital residence. See id.
[¶ 7] As for the eighth issue, the Court turned to Wife's argument that the dissolution court had abused its discretion by not dividing the marital estate equally. This Court concluded that the "holdings . . . are sufficient to reverse the trial court's original 61%-39% distribution of the marital estate," reversed that distribution, and remanded with instructions to redistribute the marital estate "starting with the presumption that the marital estate should be divided equally." Id. at 13. Finally, this Court concluded that the dissolution court did not abuse its discretion when it ordered Husband to pay $33,620.00 of Wife's attorney, mediation, and appraisal fees, based upon "unequal earning power" and Husband's control over income which included rental payments. Id. at 13.
[¶ 8] The Court remanded for "further proceedings consistent with this opinion." Id. at 14. In the Conclusion section of the opinion, the Court clarified which findings and orders had been affirmed and were therefore settled: 100% inclusion of REB Rentals' assets; valuation of a TD Ameritrade account; the division of personal property; the treatment of Meyer's financial contributions as gifts rather than loans; the exclusion of a claim for living expenses; and the award of fees. The conclusory language, read in the context of the substantive discussion as a whole, ultimately directed the dissolution court to value and distribute omitted marital assets and to determine the distribution percentage to be applied to the marital estate, starting with the presumption of an equal split.
[¶ 9] On October 30, 2023, the dissolution court conducted a hearing at which Husband and Wife each testified but did not submit new property appraisals or expert testimony. Neither offered evidence that Adams-Meyer stock had any value apart from the two assets identified by this Court in Blagrave I, that is, a bank account and a stream of income. Husband submitted into evidence a Rental Operating Agreement for REB Rentals, facially stating the percentages of ownership as 70% by Husband, 10% by Wife, and 20% by their sons, collectively. He offered Respondent's Exhibit iv, assigning a 20% reduction to REB Rentals assets. Wife testified that Husband had made no payment toward her fees. Husband testified and reiterated his positions on respective shares of REB rentals, payment of fees, and purported loans. On several occasions during the hearing, the dissolution court admonished the parties that issues which had been determined in the prior appeal could not be relitigated.
[¶ 10] On October 31, the dissolution court entered its Order on Remand. The court found the total value of the marital estate "yet to be divided" was $1,722,901.33, and the court additionally found a deviation from an even split to be appropriate, with Wife to receive 40% and Husband to receive 60%. Appealed Order at 1. The court did not contemporaneously provide a reason for that allocation but stated that "all other terms of this Court's prior Order shall remain in full force and effect, in accordance with the Court of Appeals Decision." Id. at 3.
That order had stated that a deviation was appropriate based upon Meyer's gifts. Although the gifts benefited both Husband and Wife, Husband had a prior relationship with Meyer, having been Meyer's employee since age fifteen.
[¶ 11] The assets distributed were:
• Farm property valued at $365,000.00 (deeded to REB Rentals)
• REB Rentals Checking account of $46,847.45
• Fulton Glass property valued at $146,800.00 (deeded to REB Rentals)
• Wheatland Road property valued at $260,000.00 (deeded to REB Rentals)
• Willow Street property valued at $182,500.00 (deeded to REB Rentals)
• Regions Bank account of $183,136.72 (from Pigg Implement sale)
• Future installment payments from date of dissolution calculated at $342,000.00
• Future balloon payment of $196,617.16.
[¶ 12] To effect the distribution pursuant to a 60/40 split, Wife was awarded the farm property, the future balloon payment, and $127,543.37 from the Regions checking account. Husband was awarded the REB Rentals checking account of $46,847.45, the Fulton Glass property, the Old Wheatland Road property, the Willow Street property, installment payments of $342,000.00 and the remaining balance of the Regions checking account, $55,593.35. Husband now appeals.
Discussion and Decision
Effect of Prior Appellate Decision
[¶ 13] Husband initially argues that the dissolution court misunderstood the extent to which it was bound by the prior appellate decision in this matter. He acknowledges that, "[g]enerally, the law of the case doctrine provides that trial courts should respect appellate courts' legal determinations." Appellant's Brief at 28. However, he argues that the doctrine "does not apply to factual determinations and has no application where additional facts are elicited on remand." Id.. Husband's arguments upon his multiple issues are permeated by two premises: that Blagrave I has very limited application because its discussion is primarily dicta, something unnecessary to the disposition of the issues presented; and that any matter he labels a factual issue was subject to relitigation after the first appeal.
[¶ 14] The law-of-the-case doctrine is a discretionary rule applied when courts refuse to reopen what has previously been decided. Am. Family Mut. Ins. Co. v. Federated Mut. Ins. Co., 800 N.E.2d 1015, 1019 (Ind.Ct.App. 2004). As a rule, courts should be "loathe to [reopen] in the absence of extraordinary circumstances." Id. We have at times refused to invoke the law of the case doctrine "where additional or new evidence was presented after remand from this court where the evidence after remand was in accordance with our instructions or did not alter a matter that had already been finally determined." Id. at 1021 (emphasis added).
In general, facts established at one stage of a proceeding, which were part of an issue on which judgment was entered and appeal taken, are unalterably and finally established as part of the law of the case and may not be relitigated at a subsequent stage. Even if the judgment is erroneous, it nevertheless becomes the law of the case and thereafter binds the parties unless successfully challenged on appeal. All issues decided directly or by implication in a prior decision are binding in all further portions of the same case.Id. at 1019.
[¶ 15] Husband directs our attention to Rothberg v. Hershberger, 832 N.E.2d 593 (Ind.Ct.App. 2005), trans. denied. In relevant part, Rothberg states: "The law of the case doctrine provides that an appellate court's determination of a legal issue binds both the trial court and the court on appeal in any subsequent appeal involving the same case and substantially the same facts." Id. at 598 (emphasis added.) But Rothberg does not support Husband's argument that factual determinations fall outside the parameters of the law of the case doctrine.
Rather, as Rothberg made plain, a determination that sufficient evidence exists to support a judgment is a determination of a legal issue. See id. (concluding that re-litigation was barred where, in the first appeal, the Court decided that the evidence was sufficient to support the jury's verdict and directed the trial court to enter judgment accordingly and a party had, by a motion to correct error, again challenged the sufficiency of the evidence).
[¶ 16] Notwithstanding the law of the case doctrine, Husband asserts that "this case is unique because it is on appeal for a second time and the trial court disregarded its Voided Order on remand." Appellant's Brief at 28. In Blagrave I, we stated:
Following the entry of the dissolution decree, Husband filed a motion to correct error in the trial court. The trial court held a hearing on that motion within forty-five days of Husband's filing; however, the court did not issue an order on the motion to correct error within thirty days of that hearing. Accordingly, under Indiana Trial Rule 53.3(A), Husband's motion to correct error was deemed denied. Although the trial court later purported to enter an order on Husband's motion to correct error, by then Wife had already filed her notice of appeal. In such circumstances, the court's order on Husband's motion to correct error "is voidable and subject to enforcement of the 'deemed denied' provision of Trial Rule 53.3(A) ...." Paulsen v. Malone, 880 N.E.2d 312, 313-14 (Ind.Ct.App. 2008) (quoting Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, 288 (Ind. 2000)). We thus conclude that the trial court's untimely order on Husband's motion to correct error is voided by this appeal, and we do not consider it.Slip op. at 5, n. 2.
[¶ 17] Husband observes that the voided order untimely entered upon his motion to correct error was more favorable to him. For example, only 80% of REB Rental's assets were considered to be includable within the marital estate. He asserts that the dissolution court, on remand, "substantially deviated from its presumptively meritorious Voided Order" without basis. Appellant's Brief at 30. Husband urges that we apply what he terms "cautious appellate scrutiny" to an order on remand that substantially deviates from a voided order supported by "meaningful factual findings." Id. He finds the order on remand to be akin to an order copied verbatim from a proposed order, one to be viewed with caution.
[¶ 18] On remand, the dissolution court was under no obligation to follow a voided order; nor was it obliged to explain why it deviated from a voided order. The reason for the dissolution court's inclusion of 100% of REB Rentals as a marital asset was readily apparent from the discussion in Blagrave I:
We cannot say that the trial court's finding that 100% of REB Rentals' assets are within the marital estate is clearly erroneous. In other words, the court found that, in fact, Husband and Wife collectively held a 100% ownership interest in REB Rentals. That finding is supported by the record, which reflects that Husband established REB Rentals during the marriage and with marital property. Husband testified that he had complete control over all of REB Rentals' assets and accounts during the marriage. Tr. Vol. 3, pp. 227-28. And Husband does not challenge the trial court's finding that he used REB Rentals' assets for himself and for the marriage. Further, Husband's testimony that he and Wife owned only 80% of REB Rentals was unsupported by any documentary evidence. Husband's argument to the contrary on this point is simply a request for this Court to reweigh the evidence, which we will not do.
Thus, while the trial court erred in not including the parties' REB assets in its distribution of the marital estate, we cannot say that the court clearly erred when it found that the Husband and Wife held a 100% membership in REB Rentals. On remand, the trial court shall value and divide the parties' membership interests in REB Rentals.Slip op. at 8. Under the law of the case doctrine, the dissolution court did not err when it followed the legal determination of this Court that sufficient evidence supported the inclusion of 100% of REB Rentals in the marital estate.
Evidentiary Rulings
[¶ 19] In a related argument, Husband contends that the dissolution court abused its discretion by excluding, on remand, evidence that Wife had acknowledged that Adams-Meyer was liable to Meyer for the repayment of loans. He also points out that the trial court expressed an intention to give little weight to a document indicating that he and Wife collectively owned only 80% of REB Rentals.
[¶ 20] A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstance before it or when the trial court misinterprets or misapplies the law. Schueneman v. Schueneman, 591 N.E.2d 603, 606 (Ind.Ct.App. 1992). In Blagrave I, this Court determined that the trial court had not clearly erred "when it found that the Husband and Wife held a 100% membership in REB Rentals," nor had the court clearly erred "when it declined Husband's request to consider the purported loans liabilities of the marital estate." Slip op. at 8, 12. This Court reiterated in its Conclusion portion of Blagrave I: "In sum, we affirm the trial court's finding that 100% of REB Rentals' assets were within the marital estate . . . [and] the court's finding that Meyer's financial contributions to Husband during the marriage were gifts, not loans[.]" Slip op. at 14. Accordingly, the evidence proffered by Husband on remand was no longer relevant to an issue for determination by the dissolution court. Husband has shown no abuse of discretion.
Designation of Business Interests
[¶ 21] Husband argues that the dissolution court violated the instructions of Blagrave I by the manner in which it allocated the business interests between the parties. Specifically, Husband focuses upon language in the Conclusion section of Blagrave I, wherein this Court stated in part that it "revers[ed] the trial court's failure to value, include, and distribute the parties' membership interests in REB Rentals and shares of Adams-Meyer stock." Slip op. at 14. On remand, the court divided the business assets between the parties by listing each asset, as opposed to delineating each transfer with reference to a membership value or equivalent stock value. On remand, Husband did not offer valuation evidence in terms of stock ownership. And while Blagrave I, read as a whole, clearly directed the dissolution court to distribute the prior-excluded business property, it did not mandate the use of particular terminology by the court in doing so. Husband has shown no error in this regard.
[¶ 22] Husband also argues that the distribution of assets effectively dissolved the businesses and thereby deprived Husband and Wife's sons of their property without due process. However, as previously stated and re-stated, the parties' sons do not have a 20% interest in REB Rentals.
[¶ 23] As for corporate dissolution, we are hard-pressed to find error on the part of the dissolution court in omitting reference to corporate formalities. Historically, Husband had complete control over the business assets, and apparently the parties contemplated that Husband would retain rent-producing properties that he would oversee. Neither spouse expressed an intent that either of their businesses continue in the future apart from that historical business model. There is no suggestion that the parties contemplated a joint venture between themselves in the future, sharing crop proceeds and rental payments.
Moreover, neither spouse presented, at the hearing on remand, testimony or exhibits indicating that he or she desired to be allocated a certain percentage of stock in the limited liability company, REB Rentals, as opposed to tangible assets. No evidence was produced to suggest that Adams-Meyer has value beyond its bank account and stream of income from the sale to Pigg Implements.
[¶ 24] We recognize that Blagrave I referred, in its Conclusion section, to division of "membership interests" and "shares of stock." Slip op. at 14. However, the division of the physical properties that generated rent and crops - the business purpose of REB Rentals - was necessary to divide the parties' respective business interests. If, as a practical matter, the parceling out of all assets causes a formal corporate dissolution to ensue, it is not error on the part of the dissolution court.
Tax Consequences
[¶ 25] The dissolution court awarded the future balloon payment to Wife and the installment payments to Husband. Husband observes that the values assigned are not reduced on account of anticipated tax consequences. A trial court has broad discretion in ascertaining the value of property in a dissolution action, and its valuation will not be disturbed absent an abuse of that discretion. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). However, its discretion is circumscribed by statutory authority. Indiana Code Section 31-15-7-7 provides: "The court, in determining what is just and reasonable in dividing property under this chapter, shall consider the tax consequences of the property disposition with respect to the present and future economic circumstances of each party."
[¶ 26] In prior proceedings, the parties agreed that tax consequences were relevant. At the final hearing prior to the first appeal, Husband offered expert testimony and documentary evidence that accounted for anticipated tax consequences, given an 80% marital share of REB Rentals. However, at the remand hearing, Husband did not undertake to provide current calculations, based upon 100% ownership of REB Rentals, and considering tax consequences. Rather, he insisted that the appropriate value of the future stream of income to be included in the marital estate was to be reduced by 20% on account of ownership in his sons. We cannot say that the dissolution court was obliged to perform calculations for the parties or engage in speculation as to their respective tax burdens.
Attorney's and Appraisal Fees
[¶ 27] Husband contends that an award of fees to Wife is unwarranted because the award was previously based upon her financial position being inferior to that of Husband, but circumstances changed when the dissolution court purportedly awarded her the greater share of the marital estate. He suggests that the law of the case doctrine is inapplicable here because of additional facts distinguishing this case from the case decided in the first appeal. Appellant's Brief at 53. As best we can discern, he claims that the distinguishing fact is that the dissolution court distributed additional property to Wife.
[¶ 28] In Blagrave I, this Court affirmed the fee award to Wife. This was not an issue for consideration by the dissolution court on remand and, accordingly, Husband presented no new evidence regarding fees at the hearing on remand. Wife presented no new evidence as to the propriety of an award of fees. The dissolution court, in its remand order, simply reiterated that Husband - who had not made any payments toward the fees - was to pay the fees. This is in accordance with the decision in Blagrave I. Husband has shown no error.
Duplicate Allocation of Assets
[¶ 29] Finally, Husband argues that the order on remand is internally inconsistent and also inconsistent with the prior division of assets. Our review of the first and second distribution orders reveals that certain assets, specifically the Fulton Glass property, the Wheatland Road property, and the Willow Street property, were twice awarded. They were awarded to Husband and charged against his share of the marital estate in the first division. These properties, apparently because REB Rentals held the deeds, were again allocated on remand, as business properties. The net effect is that Husband did not receive the 60% share of the entire marital estate, as apparently intended by the dissolution court, although the court did not enter a contemporaneous finding to support the deviation. Additionally, the final distribution percentage was not applied to the first-distributed assets (which would have been necessary to effect a uniform 60/40 split of the aggregate assets). Because of these inconsistencies and the lack of a contemporaneous finding to support the deviation from the presumptive 50/50 split - as directed by Blagrave I, -- we reverse the order on remand to the extent that it allocated business properties without making the necessary adjustments to the overall distribution.
We acknowledge that Blagrave I directed the division of business interests between the parties. Blagrave I did not reverse the prior order in its entirety nor mandate a complete reallocation of marital assets. However, because some business assets had already been accounted for in the total distribution in the first property division, when there is duplication, some additional revision of the first order must occur as a matter of practical necessity.
Conclusion
[¶ 30] We affirm the dissolution court in the matters encompassed by the law of the case doctrine, that is, the inclusion of 100% of REB Rentals in the marital estate, the award of fees to Wife, the personal property division, the exclusion of purported loans to Meyer, and the exclusion of claimed living expenses. We direct the court on remand to determine the appropriate allocation of business assets between parties, and to account for that distribution of business assets in the overall distribution. The dissolution court is to determine what distribution percentage is applicable, starting with the presumption of an equal split.
[¶ 31] Affirmed in part, reversed in part, and remanded with instructions.
Altice, C.J., and Mathias, J., concur.