Opinion
24A-DN-124
09-20-2024
Anthony King, Appellant-Petitioner v. Randy King, Appellee-Respondent
ATTORNEY FOR APPELLANT Thomas S. Bowman Allen Wellman Harvey Keyes Cooley, LLP Greenfield, Indiana ATTORNEY FOR APPELLEE Nicole A. Zelin Pritzke & Davis, LLP Greenfield, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Hancock Superior Court The Honorable Cody B. Coombs, Magistrate Trial Court Cause No. 30D01-2211-DN-001501
ATTORNEY FOR APPELLANT
Thomas S. Bowman
Allen Wellman Harvey Keyes Cooley, LLP
Greenfield, Indiana
ATTORNEY FOR APPELLEE
Nicole A. Zelin
Pritzke & Davis, LLP
Greenfield, Indiana
MEMORANDUM DECISION
FELIX, JUDGE.
[¶1] Anthony King ("Husband") and Randy King ("Wife") were married in 2002. After 20 years of marriage, Husband filed a petition for dissolution, and Wife filed a counter-petition seeking dissolution and maintenance. Following a final hearing, the trial court entered its decree of dissolution, which Husband now appeals. Husband presents four issues for our review, which we consolidate and restate as the following three issues:
1. Whether the trial court erred by including certain assets in the marital estate subject to division;
2. Whether the trial court erred by finding Husband had dissipated marital assets; and
3. Whether the trial court abused its discretion when it awarded incapacity maintenance to Wife.
[¶2] We affirm.
Facts and Procedural History
[¶3] Husband and Wife married on July 26, 2002, and the parties had no children together. Husband has a prior-born son who lived in the marital residence when he was younger, but the son moved out by 2015.
[¶4] In November 2022, Husband filed a petition for dissolution of marriage, and Wife later filed a counter-petition requesting a dissolution of marriage and maintenance. After a final hearing, the trial court entered its Decree of Dissolution of Marriage, Findings of Fact, Conclusions of Law, and Judgment ("Decree"), which provides in relevant part as follows:
Neither party requested special findings under Trial Rule 52.
FINDINGS OF FACT
* * *
9. Husband is disabled and retired from the military. He receives approximately $2,300 per month through Social Security Disability Income and $3,800 per month from VA disability payments. Upon dissolution of the marriage, Husband's VA disability payments will decrease to approximately $3,500 per month.
10. Prior to November 2014, Wife was employed as a real estate agent, and she has held past jobs as a server at a restaurant and a bartender; however, at the time of filing, Wife was not employed and had not been employed since November 2014. Wife is 56 years old and has a high school diploma but no other education to assist her in obtaining income or employment.
11. Wife testified that she is unable to work due to her health conditions. Wife has a claim pending for Social Security SSI but does not qualify for Social Security Disability as she has not worked as an employee or earned income sufficient to qualify. Wife suffers from chronic pain syndrome, cervical disc disorder with myelopathy, spondylosis in her lumbar region, low back pain myalgia and aorta issues as described by Wife and
supported by her medical records from Rehabilitation Associates of Indiana.
12. During much of the marriage, Husband would supplement his income by buying and selling items on [eBay]. Husband no longer sells as many items on [eBay] due to policy changes at [eBay].
13. Husband withdrew cash from time to time for gambling and spent money on live porn websites and on other women. Husband also gifted his monthly VA check to his mother over a substantial portion of the marriage.Appellant's App. Vol. II at 10-12. In the Decree, the trial court distributed certain personal property and accounts, awarded the marital residence to Wife, and awarded "all Husband's personal injury settlement for injury from a car accident occurring during the marriage" to Husband, id. at 16. The Decree further allocated the marital debt between the parties, including ordering Husband to make the parties' monthly Chapter 13 Plan payment to the bankruptcy trustee until paid in full and the parties are discharged from bankruptcy.
The trial court determined asset and debt values for only the marital residence and the mortgage loan securing the same. In other words, other than the marital residence and corresponding loan, no values of any marital asset or debt are included in the Decree. It should be noted that neither party complains about the absence of the determination of values for any asset or debt. It should also be noted that neither party attempts to put forth their purported values for any of the assets or debts. Because the parties did not complain about the lack of values, we did not attempt to ascertain whether the lack of values was error in and of itself or whether knowing the values would have affected the other issues raised. See Dean v. Dean, 439 N.E.2d 1378, 1383 (Ind.Ct.App. 1982) (a trial court does not need to establish the value of each marital asset before distribution).
[¶5] Regarding the division of the marital estate and the maintenance order, the Decree provides:
34. In awarding the equity in the marital residence to Wife, the division of assets and debts is a deviation from an equal division of assets and debts. The Court finds it appropriate to deviate from a 50/50 division of [the] marital estate for the following reasons:
a. The conduct of Husband during the marriage as related to the disposition or dissipation of their property, including his ATM cash withdrawals for gambling, the money he spent on live porn websites, dating, and the money he gave away to his mother in the form of his monthly VA check during a substantial portion of the marriage. See Amended Exhibit GG.
b. The disparity in the earnings or earning ability of the parties as set forth in the findings above.
* * *
36. Due to Wife's inability to support herself due to her physical incapacities and due to Wife's inability to provide for her needs the Court Finds and Orders that maintenance is necessary.
37. Husband shall pay Wife permanent maintenance of $750.00 per month on or before the 5th of each month until such time as Wife qualifies for and or receives either SSI or is eligible to draw on Husband's social security retirement. As stated previously herein, Husband shall continue to make the monthly payment to the United States Bankruptcy Trustee until the successful conclusion of the Chapter 13 payment plan. During the period in
which Husband pays the Trustee, $400.00 of Husband's overall payment to the Trustee shall be considered $400.00 of Husband's $750.00 monthly maintenance obligation. The remaining amounts owed to Wife as maintenance shall be paid directly to Wife. Upon successful completion of the Chapter 13 payment plan, Husband shall pay the full $750.00 per month maintenance obligation directly to Wife.
38. Due to the vast disparity in income, Husband shall pay $3,000.00 of Wife's attorney fees.Appellant's App. Vol. II at 17-19. Husband now appeals.
Discussion and Decision
Standard of Review
[¶6] The standard of review in dissolution cases is well-settled. Where the trial court "issued findings of fact and conclusions of law, the judgment will be set aside only if it is clearly erroneous." Cooley v. Cooley, 229 N.E.3d 561, 564 (Ind. 2024) (citing Ind. Trial Rule 52(A)). Without reweighing the evidence or reassessing witness credibility, we determine whether the evidence supports the court's findings and, if so, whether those findings support its judgment. Id. For issues not covered by the sua sponte findings, we apply our general judgment standard, meaning we "should affirm based on any legal theory supported by the evidence." State ex rel. Dep't of Nat. Res. v. Leonard, 226 N.E.3d 198, 202 (Ind. 2024) (citing Steele-Giri v. Steele, 51 N.E.3d 119, 123-24 (Ind. 2016); T.R. 52(D).)
1. Any Error in the Trial Court's Division of the Marital Estate Was Harmless Error
Husband contends the trial court "committed clear error" when it included his personal injury claim and certain personal property in the marital pot. Appellant's Br. at 10. "The division of marital property in Indiana involves a two-step process. The trial court must first identify the property to include in the marital estate, and then must distribute that property under the rebuttable presumption that an equal division between the parties is 'just and reasonable.'" Roetter v. Roetter, 182 N.E.3d 221, 222 (Ind. 2022); see also Ind. Code § 31-15-7-5).
[¶7] For purposes of step one, the trial court must determine what property is in the marital estate. Roetter, 182 N.E.3d at 226-27 (citing O'Connell v. O'Connell, 889 N.E.2d 1, 10 (Ind.Ct.App. 2008)). Marital property "consists of both assets and liabilities" and encompasses "all marital property," whether acquired by a spouse before the marriage or during the marriage or procured by the parties jointly. Id. at 227; see also I.C. § 31-15-7-4(a). The party challenging the "trial court's division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute." Roetter, 182 N.E.3d at 225 (quoting Wanner v. Hutchcroft, 888 N.E.2d 260, 263 (Ind.Ct.App. 2008)).
a. Although Husband's Personal Injury Claim Should Not Have Been Included in the Marital Estate, Doing So Was Harmless Error
[¶8] Husband argues that the trial court erred when it included his pending personal injury claim in the marital estate. Husband is correct that a pending personal injury claim is not marital property. See Dusenberry v. Dusenberry, 625 N.E.2d 458, 462 (Ind.Ct.App. 1993) (citing McNevin v. McNevin, 447 N.E.2d 611, 616 (Ind.Ct.App. 1983)). The Decree declared Husband the "owner free and clear of any right, title or interest of Wife in . . . [a]ll Husband's personal injury settlement for injury from [a] car accident occurring during the marriage." Appellant's App. Vol. II at 16. From this, it appears the trial court considered Husband's personal injury claim to be marital property. Wife disputes there is any error in awarding Husband the personal injury settlement because "the trial court neither divided the claim nor placed any value on said claim." Appellee's Brief at 12. She concedes that she requested half the value of that tort claim at the final hearing but, on appeal, recognizes that the pending lawsuit has no "present ascertainable value." Appellee's Br. at 12 (citing McNevin v. McNevin, 447 N.E.2d 611, 618 (Ind.Ct.App. 1983)).
[¶9] To the extent the trial court treated the personal injury claim as marital property, such was error. See Dusenberry, 625 N.E.2d at 462 (citing McNevin, 447 N.E.2d at 616). However, because the trial court neither explicitly stated the value of the majority of assets nor determined a value for the tort claim, we cannot determine whether the trial court awarded any value to the personal injury claim. Neither party has directed us to, nor have we found in the record, any evidence about the value of the tort claim. Because there was no evidence showing the court valued the tort claim, we agree that any error regarding inclusion of the personal injury claim as marital property was harmless.
b. The Trial Court's Failure to Identify Whether Certain Personal Property Was Marital Property Was Not Error
[¶10] Husband next contends that the trial court erred when it included certain items as part of the marital estate and allocated the same to him in the Decree. Specifically, Husband claims that certain "sports cards, sports memorabilia, and clothes" actually belong to his adult son and that certain "boxes in the garage" belong to his sister. Appellant's Br. at 11. Husband cites his Financial Declaration Form and a handwritten list of personal property, both exhibits admitted at the final hearing, in support of his argument. On Husband's Verified Financial Declaration Form, he listed in the "Other Assets" category the following items relevant to this issue: "Son's sports cards," "Son's sports memorabilia," and "Son's clothes." Ex. Vol. III at 11. For these items Husband listed "n/a" as the value. Even more importantly, for these items, in the column titled "Owner", Husband listed himself as the owner of each these items. On the handwritten list of personal property, Husband points to the items "all my son[']s sports cards, sports memorabilia &clothes" and "all my sister[']s boxes in [the] garage" as proof that these items were not marital property. Ex. Vol. III at 13.
[¶11] Husband argues that the Decree set these items over to him but was not clear whether the trial court considered them to be marital property. Because Husband's own evidence identified himself as the owner of these items of property, we cannot find the trial court erred. However, even if we were to agree that the trial court's failure to identify whether these assets are marital property subject to division was error, Husband has not shown such error to warrant reversal or remand on this issue. Neither Husband nor Wife assigned or designated any evidence showing any value of the assets Husband alleges belong to his son and sister. Because Husband does not point to any evidence showing the trial court valued these assets, any error regarding their inclusion in the marital estate was harmless.
Husband also invited this error by specifically listing himself as the owner of each of these items.
2. The Evidence Supports a Finding of Disposition or Dissipation of Marital Property
[¶12] Husband's next issue is whether the trial court erred by finding he disposed of or dissipated marital assets. He contends there was insufficient evidence to find either disposition or dissipation and, even if there was evidence of either, there was insufficient evidence of the amount of marital assets disposed of or dissipated. Wife counters there was sufficient evidence of both and evidence of the amount expended. The trial court made no distinction between disposition or dissipation of marital assets, so we consider the argument about both together.
[¶13] Disposition of marital property as contemplated in Indiana Code section 31-157-5 means "transfers or transactions" that are "unusual or out of the ordinary" but do not involve waste. In re Marriage of Coyle, 671 N.E.2d 938, 944 (Ind.Ct.App. 1996). Dissipation "generally involves the use or diminution of the marital estate for a purpose unrelated to the marriage and does not include the use of marital property to meet routine financial obligations." In re Coyle, 671 N.E.2d at 943.
To determine whether dissipation has occurred, we consider the following factors:
1. Whether the expenditure benefited the marriage or was made for a purpose entirely unrelated to the marriage;
2. The timing of the transaction;
3. Whether the expenditure was excessive or de minimis; and
4. Whether the dissipating party intended to hide, deplete, or divert the marital asset.Hardebeck v. Hardebeck, 917 N.E.2d 694, 700 (Ind.Ct.App. 2009).
[¶14] In support of Wife's contention that Husband disposed of or dissipated the marital estate, she presented evidence that showed (1) Husband withdrew $97,188.85 from ATMs; (2) Husband spent $16,787.62 for dating other women; and (3) Husband spent $14,000 for live porn websites (listed in the Decree as "webcam"). Tr. Vol. II at 36-37; Ex. Vol. VI at 132. Additionally, both Husband and Wife testified that he had given his VA Disability checks to his mother during the marriage. In total, Wife claims Husband disposed of or dissipated the marital estate by $127,975.84 on gambling, billiards, golf, adult entertainment services that did not benefit the marriage, and money given to his mother. Ex. Vol. VI at 132 (Ex. GG).
[¶15] Initially on appeal, Husband argues that the Decree "does not indicate whether [the trial court] found [Husband] to have committed disposition or dissipation." Appellant's Br. at 12. It is evident from the Decree, quoted above at paragraph 34(a), that the court did precisely that when it found a deviation from an equal division of the marital estate to be appropriate due to "the conduct of Husband during the marriage as related to the disposition or dissipation of [marital property.]" Appellant's App. Vol. II at 17. Alternatively, Husband attacks the multiple types of expenditures and argues that Wife did not present "objective evidence" on the amount of money spent. Appellant's Br. at 14.
a. Gambling, Other Women, and Live Porn Websites
[¶16] In challenging the sufficiency of evidence showing disposition or dissipation of marital assets, Husband argues that Wife's testimony is not based on "objective evidence" or is merely speculation that the ATM withdrawals were for money he spent on gambling, other women, or live porn websites. Appellant's Br. at 14. He specifically challenges an exhibit summarizing Wife's testimony and other exhibits introduced in support of the dissipation claim, arguing that the exhibit summarizing Wife's testimony was unreliable and inaccurate. The trial court found that ATM cash withdrawals were for "gambling, the money [Husband] spent on live porn websites, [and] dating" and such constituted disposition or dissipation. Appellant's App. Vol. II at 17-18. Husband now argues that this money was spent at auctions like eBay; however, this amounts to nothing more than a request that we reweigh the evidence, which we cannot do. Cooley, 229 N.E.3d at 564. The evidence supports the trial court's finding that Husband's ATM withdrawals were for gambling, dating other women, and live porn websites and that such constituted the disposition or dissipation of marital property. See Cooley, 229 N.E.3d at 564.
Wife's testimony and the bulk of her exhibits in support of her dissipation claim came in without objection. Husband's only objection at trial was to the exhibit summarizing her dissipation testimony and exhibits. To the extent that Husband's argument is that Wife's testimony was speculative, that argument is waived because it was not raised at trial. See Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008) ("[A]n objection on grounds other than those raised on appeal is ineffective to preserve an issue for appellate review.").
b. VA Disability Payments
[¶17] Husband also challenges the finding of disposition or dissipation based on his transfer of his VA Disability payments to his mother during the marriage. He argues that his transfer of the VA Disability checks to his mother should not be considered disposition or dissipation because the transfers occurred long before the parties' separation date and were "not intend[ed] to hide, divert, or otherwise deplete the marital estate." Appellant's Br. at 17. However, Husband does not dispute that he made such transfers during much of the marriage, challenging only how long such transfers lasted. Regardless, the evidence supports the trial court's finding that these transfers occurred during a "substantial portion of the marriage." Appellant's App. Vol. II at 18. The trial concluded these transfers constituted disposition or dissipation of marital assets. In any event, based upon this record, we cannot determine the trial court clearly erred, nor can we reweigh the evidence. See Cooley, 229 N.E.3d at 564.
Husband testified that he stopped forwarding his VA Disability checks to his mother in 2008, when the parties were facing financial difficulties, while Wife testified that the transfers lasted until the mother's death in 2013.
c. Amount of Dissipation of Marital Assets
[¶18] Husband next challenges the amount the trial court attributed to the disposition or dissipation of the marital estate. Once again, the trial court's sua sponte findings in the Decree did not include any determination of values for the majority of the marital assets. The Decree did not value how the marital estate was divided or what percent of the marital estate was distributed to the parties, and it did not determine a precise amount of disposition or dissipation. Husband's appellate argument challenging the amount the trial court assigned to the disposition or dissipation of marital assets fails to specify what value the court assigned. Without explaining what the value of disposed or dissipated assets was, Husband also has not shown that the value the trial court assigned in this regard is in error, see State ex rel. Dep't of Nat. Res., 226 N.E.3d at 202 (applying general judgment standard for issues not covered by the findings). In sum, we do not know the amount of disposed or dissipated assets. We do not know the actual percentage split the trial court found appropriate nor how close or distant the split was from 50/50. Neither party suggests through their own calculations how much of a deviation from the presumption the court found was appropriate. The only thing we know regarding the disposition or dissipation of marital assets is that the trial court considered it in deviating from a 50/50 presumption. Due to our standard of review, it was Husband's obligation to show that the trial court "clearly erred," see Roetter, 182 N.E.3d at 225 (quoting Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind. 2002)), and he has failed to do so.
A request for special findings pursuant to Trial Rule 52 could have cured these deficiencies. Potentially, a request for clarification or a motion to correct errors could have helped determine the amount or value the court assigned to the disposed or dissipated assets.
3. The Trial Court Did Not Clearly Err by Awarding Wife Incapacity Maintenance
[¶19] Finally, Husband challenges the trial court's order requiring him to pay maintenance to Wife "[d]ue to Wife's inability to support herself due to her physical incapacities and due to Wife's inability to provide for her needs." Appellant's App. Vol. II at 18. The trial court is authorized to award maintenance in a final dissolution decree after making the findings required by Indiana Code section 31-15-7-2. Ind. Code § 31-15-7-1. To award incapacity maintenance, the trial court must make findings showing the "spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected" and that "maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court." I.C. § 31-15-7-2(1). In appropriate cases, an award of incapacity maintenance may be permanent. See Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1174-75 (Ind.Ct.App. 1995), trans. denied. "Where a trial court finds that a spouse is physically or mentally incapacitated to the extent that the ability of that spouse to support himself or herself is materially affected, the trial court should normally award incapacity maintenance in the absence of extenuating circumstances that directly relate to the criteria for awarding incapacity maintenance." Barton v. Barton, 47 N.E.3d 368, 375 (Ind.Ct.App. 2015) (quoting Cannon v. Cannon, 758 N.E.2d 524, 527 (Ind.2001)), trans. denied.
[¶20] Here, the trial court awarded Wife "permanent maintenance." Appellant's App. Vol. II at 18. Husband essentially argues that the evidence is insufficient to support this award of permanent maintenance. He acknowledges that the trial court admitted medical records documenting Wife's condition and that Wife testified that she quit her realtor job in 2014 when she was "diagnosed with a congenital birth defect in her spinal canal" and has degenerative disc disease and "'several issues going on' with her back and neck causing her spine to flatten." Id. at 19. However, he argues that Wife is able to work because she "reviewed the bank records exhibit" to help prepare for the final hearing, is "able to clean her house," "lost [weight] through exercising and walking," and had visited South Carolina to "help her niece and her children." Id. at 20-21.
[¶21] Husband compares the facts in this case to Matzat v. Matzat, in which this court reversed an award of incapacity maintenance for lack of sufficient evidence. 854 N.E.2d 918, 921 (Ind.Ct.App. 2006). There, the only evidence supporting the maintenance award was the wife's testimony that she was unable to work due to severe back pain. Id. No medical records were offered at trial to show her diagnoses, any medical testing, the cause of her condition, or her prognosis. Id. Additionally, a prior application for Social Security benefits had been based on completely different conditions (depression, cramping, and bloating due to medication). Id. In reversing the maintenance award, this court suggested that the wife's testimony at the final hearing "was, at the least, misleading, and, at the worst, an act of fraud on the court." Id.
[¶22] The facts in Matzat are clearly distinguishable from those in the present case. Here, the trial court found in relevant part that Wife was not employed and had not been employed since November 2014; was 56 years old; had a high school diploma; had no further education to assist with gaining employment; testified she could not work due to health issues, which were verified through medical records; and had a pending Social Security SSI claim. In short, Wife presented sufficient evidence, including medical records, to demonstrate her medical condition and support her request for incapacity maintenance. Additionally, the denial of her Social Security Disability application was not based on the failure to demonstrate a qualifying disability but, rather, on the lack of a work history to qualify for that benefit. Matzat is inapposite. Husband's challenge to the award of incapacity maintenance amounts to a request that we reweigh the evidence, which we cannot do. Cooley, 229 N.E.3d at 564. Therefore, Husband has not shown that the trial court abused its discretion in awarding incapacity maintenance in the Decree.
Conclusion
[¶23] To the extent the trial court treated Husband's personal injury claim as marital property, such was error. However, because there was no apparent value assigned to the personal injury claim, we find the error was harmless, so we affirm on this issue. Including non-marital property was not error; however, even if it was, there was no apparent value assigned to such property, and we hold any error was harmless. The evidence supports the finding of disposition or dissipation by Husband. Finally, the trial court did not err when it awarded incapacity maintenance to Wife.
[¶24] Affirmed.
Kenworthy, J., and Riley, Sr. J., concur.