Opinion
23A-DN-3030
06-12-2024
Raayn Renbarger, Appellant-Respondent v. Matthew Fischer, Appellee-Petitioner
ATTORNEY FOR APPELLANT Zechariah D. Yoder Adler Attorneys Noblesville, Indiana ATTORNEY FOR APPELLEE Phyllis J. Garrison Eimerman Law Noblesville, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Hamilton Superior Court The Honorable Andrew R. Bloch, Magistrate Trial Court Cause No. 29D03-2211-DN-008670
ATTORNEY FOR APPELLANT Zechariah D. Yoder Adler Attorneys Noblesville, Indiana
ATTORNEY FOR APPELLEE Phyllis J. Garrison Eimerman Law Noblesville, Indiana
MEMORANDUM DECISION
FELIX, JUDGE.
Statement of the Case
[¶1] Raayn Renbarger ("Wife") and Matthew Fischer ("Husband") married on April 7, 2021. On July 26, 2023, the trial court entered the Decree of Dissolution (the "Decree"), which divided the marital estate and dissolved the parties' marriage. Wife now appeals the Decree, raising the following three issues:
1. Whether the trial court clearly erred when it excluded Husband's stock options from the marital estate subject to division;
2. Whether the trial court clearly erred when it divided the marital estate between the parties; and
3. Whether the trial court erred when it failed to consider making an award of spousal maintenance to Wife.
[¶2] We affirm. Facts and Procedural History
Husband accepted the Statement of Facts as included in Wife's Appellant's Brief.
[¶3] On April 7, 2021, Husband and Wife married. Each had children from prior to the marriage. On November 11, 2022, Husband filed his petition for dissolution of marriage.
[¶4] The parties had a house together prior to their marriage. In 2019, Wife obtained financing[ and bought a home at 15657 Millwood Drive, Noblesville, Indiana (the "Marital Residence") because Husband could not obtain financing. Wife paid a down payment of $11,665. Husband and his children moved into the Marital Residence while Wife and her son lived in an apartment. By August 12, 2019, Husband had repaid Wife for the down payment by giving her $12,000 cash had "bought the home [the Marital Residence] from [Wife]" and took over the mortgage payments. Tr. Vol. II at 52. Wife and her son moved in with Husband and his children in the Marital Residence in March 2021.
Wife cites to "Tr. Vol. I at 144-45," but there are no such pages in that volume, which is merely a table of contents. To the extent Wife's record citations are to pages that do not exist, Wife has failed to provide record citations in support of several statements of fact, which violates Indiana Appellate Rules 46(A)(6)(a) and 46(A)(8)(a). See, e.g., Appellant's Br. at 6 (citing Tr. Vol. I at 135-39, 155-56, 169); id. at 8 (citing Tr. Vol. I at 79-134, 79, 80, 98, 99); id. at 13 (citing Tr. Vol. I at 135-39).
[¶5] In August 2021, Wife was diagnosed with a brain tumor. Wife obtained treatment for the tumor at Cleveland Clinic in Ohio beginning in November 2022, on or around the date of filing of dissolution. During the pendency of this dissolution action, she had six surgeries between 2022 and 2023 to treat the brain tumor and its aftereffects and requires ongoing treatment for the same. Because of her medical issues, Wife lost the job she had held at the time of the marriage, "has been unable to maintain full-time employment[,] and there was a period of at least six months where she could not work at all." Appellant's Br. at 7. At the time of the final hearing, Wife worked part-time at a spa.
[¶6] Before and during part of the marriage, Husband worked for Restoration Builders, Inc., earning approximately $212,000 per year. On September 3, 2020, he executed the Restoration Builders, Inc. 2018 Stock Incentive Plan Stock Option Agreement ("Stock Option Agreement"). The Stock Option Agreement, which was effective as of July 1, 2020, granted Husband options to purchase up to 20,000 shares of stock in Restoration Builders, Inc. pursuant to a tiered schedule. Under the terms of this agreement, 20 percent of the options became exercisable annually each year on the anniversary of the effective date (July 1). Once a tier of options became exercisable, Husband could exercise such options to buy Restoration Builders stock at a price of $3.00 per share. Options that were exercisable would remain so as long as Husband remained employed by Restoration Builders and, as relevant here, for 90 days after termination of his employment. As of July 1, 2021, 20 percent of options (4,000 shares) were exercisable, and as of July 1, 2022, another 20 percent of the options became exercisable under the same terms. However, Husband's employment at Restoration Builders ceased on March 13, 2023, when his position was moved to Florida. Again, the trial court held a final hearing on May 26, 2023. Prior to the final hearing, Husband never exercised any options.
[¶7] Wife and her son moved out of the Marital Residence in September 2022. On November 11, 2022, Husband filed a petition for dissolution of marriage. The trial court held a final hearing on May 26, 2023. On July 26, 2023, the trial court entered the Decree, which includes sua sponte findings and provides in relevant part:
9. The part[ies'] marriage lasted less than two (2) years. The Court finds that this constitutes a short-term marriage under Indiana law.
10. Husband was responsible for providing financially for the family, including, paying the mortgage, utilities, car payments, and all other financial needs of the family.
11. Wife made minimal contribution to the financial needs of the family, providing statements for her Venmo account which show she assisted Husband financially in the total amount of $2,200.00.
12. Prior to separating from Husband, Wife was diagnosed with a brain tumor and since said time has had same removed via surgery. Wife has expressed that she has not been able to become employed at her prior capacity due to her remaining symptoms and ongoing medical difficulties.
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14. At the time the dissolution was filed, Husband was employed at Restoration Builders, Inc. and made approximately $212,000.00 in 2021. Husband was terminated from his employment after his position was eliminated and the position he was offered was in Florida.
15. Husband has three (3) prior born children, of which, two (2) remain the age of minority and [are] attending school in Noblesville, Indiana, and Husband desires they remain in their current school system. Husband maintains custody of those children and relocation may also be made more difficult by his need to file a notice of intent to relocate, the fact that their mother participates in supervised visitation and other
complexities associated with relocation under these circumstances.
16. Husband is now employed by Universal Roofing, LLC making $2,884.62 per paycheck on a bi-weekly basis.
17. After the petition for dissolution was filed, Husband continued to pay all bills associated with the marital residence, the GMC Acadia (both financing payments and insurance), health insurance for Wife, and the Proper Loan associated with IVF treatments that the parties engaged in.
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19. The net marital estate of the parties is $145,394.46.
20. Wife requested that the court consider and value Husband's Stock Options from Restoration Builders, Inc. Restoration Builders, Inc. was a closely held corporation whose stock was not and is not publicly traded. Furthermore, Husband's stock options had not yet vested and as such, had no value as of the date of filing or the final hearing in this matter and therefore, same is not included in the marital estate.
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23. The Court has considered the relevant factors, testimony, and evidence with respect to the division of the marital estate.
24. The evidence presented is clear that Husband brought into the parties['] marriage the lion['s] share of the assets. While Wife made the original downpayment from her account for the parties' marital residence, Husband repaid her for same. Most of the personal property in the parties' marital residence was provided
by Husband. Wife segregated her funds and made limited contribution to the marital expenses. Husband made payment for all expenses in the marriage minus minimal payments to Husband to assist through Venmo or limited contribution to the IVF costs. The parties had a short-term marriage. Both Husband and Wife's earning capacities have been severely diminished. Husband has and continues to service the debts of the parties and has requested that the court award him most of the debt to service going forward.
25. The court finds that Husband has rebutted the presumption of an equal division of marital property and now provides the following division of same, [allocating 82 percent of the marital estate to Husband and the remainder to Wife.]
26. Wife shall refinance the debt on the GMC Acadia into her own name. In the event that she cannot, she shall sell the GMC Acadia to extinguish same from Husband's name and shall be responsible for any deficiency from same.
27. Husband shall make an equalization payment to Wife in the amount of $29,078.89. 28. Husband has made post-filing payments from November 1, 2022, through June 1, 2023 ....
29. The court credits the amount of these payments to Husband towards the equalization payment to Wife leaving the remaining amount due and owing of $22,198.92.
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31. Wife has requested that Husband be responsible for all or a portion of her attorney fees in the total amount of $9,485.16.
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34. Husband filed the original petition for dissolution and requested the final hearing. The parties participated in mediation for a limited amount of time of 1.25 hours. The parties engaged in limited discovery. Wife's attorney fees are not reasonable considering the factors set forth above. However, due to the economic circumstances of the parties, the Court finds that Husband should contribute the amount of $2,500.00 to Wife's attorney fees within sixty days of this Order.Appellant's App. Vol. II at 7-12. Wife filed a motion to correct error on October 26, 2023. Following a hearing on November 8, 2023, the trial court denied the motion on December 7, 2023. Wife now appeals.
Discussion and Decision
1. The Evidence Supports the Trial Court's Exclusion of Husband's Stock Options from the Marital Estate
[¶8] Wife contends that the trial court should have included Husband's stock options as part of the marital estate subject to division. "The division of marital assets, including a determination as to whether an asset is a marital asset, is within the trial court's discretion. Tyagi v. Tyagi, 142 N.E.3d 960, 964 (Ind.Ct.App. 2020) (citing Antonacopulos v. Antonacopulos, 753 N.E.2d 759, 760 (Ind.Ct.App. 2001)), trans. denied. However, where the trial court made findings of fact sua sponte, we ask "whether the evidence supports the findings, and whether the findings support the judgment," and we will set aside the judgment only when it is clearly erroneous. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016) (citing In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014), reh'g denied).
[¶9] In dissolution of marriage actions, the trial court must determine what property is in the marital estate. Roetter v. Roetter, 182 N.E.3d 221, 226-27 (citing O'Connell v. O'Connell, 889 N.E.2d 1, 10 (Ind.Ct.App. 2008)). "Property" as used in the dissolution statutes means:
[A]ll the assets of either party or both parties, including: (1) a present right to withdraw pension or retirement benefits;
(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage; and
(3) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 1408(a)) acquired during the marriage that is or may be payable after the dissolution of marriage.I.C. § 31-9-2-98(b). "Generally, the marital pot closes on the day the petition for dissolution is filed. The date of filing is defined by statute as the date of 'final separation.'" Kakollu v. Vadlamudi, 175 N.E.3d 287, 298 (Ind.Ct.App. 2021) (citing Goodman v. Goodman, 94 N.E.3d 733, 747 (Ind.Ct.App. 2018), trans. denied), trans. denied. Property owned by either spouse before the marriage is included in the marital estate and subject to division and distribution, Id. § 31-15-7-4(a), and is determined as of the date the petition for dissolution was filed, Fischer v. Fischer, 68 N.E.3d 603, 608 (Ind.Ct.App. 2017), trans. denied.
[¶10] Wife argues that Husband's stock options should be part of the marital estate subject to division. A stock option is an "option to buy or sell a specific quantity of stock at a designated price for a specified period regardless of shifts in market value during the period." Stock Option, Black's Law Dictionary (11th ed. 2019). Stock options are a common form of deferred compensation. Hendricks Cnty. v. Green, 120 N.E.3d 1118, 1123 (Ind.Ct.App. 2019), trans. denied. When the conditions for exercising a stock option have been met, such as the accrual of a date, the option is said to be exercisable, meaning the holder can exchange the options for stock shares under the terms of the stock option agreement.
[¶11] Here, the Stock Option Agreement granted Husband options to purchase Restoration Builders stock. As of the separation date (the date of filing), part of Husband's options were exercisable, specifically, he could use the options to purchase 8,000 shares of Restoration Builders stock. However, Husband could only exercise those options as long as he remained employed by Restoration Builders or if he exercised them within 90 days of termination of employment. Husband's employment at Restoration Builders ended March 13, 2023. Again, prior to the final hearing, Husband never exercised any options to purchase shares of Restoration Builders stock.
[¶12] For purposes of determining whether Husband's stock options were property to be included in the marital pot, we conclude they were not. Husband's stock options were not includable in the marital pot because the right to exercise the options was contingent on Husband purchasing or actually exercising the option, which he did not do either prior to the date of filing or the final hearing. See Fischer, 68 N.E.3d at 608. Wife essentially concedes this point but continues to argue for inclusion of the stock options in the marital pot because Husband could "have left the Final Hearing and purchased 3,300 shares from Restoration Builders without Wife or the trial court's knowledge." Appellant's Br. at 19. A concern such as this one may have been sufficient reason to request a continuance of the final hearing. As such, the trial court did not abuse its discretion when it failed to include Husband's stock options as part of the marital estate.
2. The Evidence Supports the Trial Court's Unequal Division of the Marital Estate
[¶13] Wife next argues that the trial court erred when it divided the marital estate unequally with the majority of the estate set over to Husband.
The division of marital property in Indiana involves a two-step process. First, the trial court must identify the property to include in the marital estate. O'Connell v. O'Connell, 889 N.E.2d 1, 10 (Ind.Ct.App. 2008). This consists of both assets and liabilities, Miller v. Miller, 763 N.E.2d 1009, 1012 (Ind.Ct.App. 2002), and encompasses "all marital property," whether acquired by a spouse before the marriage or during the marriage or procured by the parties jointly, Eads [v. Eads], 114 N.E.3d [868,] 873 [(Ind.Ct.App. 2018)].Roetter, 182 N.E.3d at 226-27. "A trial court must then divide the marital estate 'in a just and reasonable manner,' which can be accomplished by giving property to one spouse and requiring the other 'spouse to pay an amount, either in gross or in installments, that is just and proper.'" Cooley v. Cooley, 229 N.E.3d 561, 564 (Ind. 2024) (quoting I.C. § 31-15-7-4(b)).
[¶14] "An equal division of the property is presumptively just and reasonable. Cooley, 229 N.E.3d at 564 (quoting I.C. § 31-15-7-5). This presumption may be rebutted, however, by evidence of each spouse's contribution to the acquisition of the property, the extent to which the property was acquired before the marriage or by inheritance, the economic circumstances of each spouse, the conduct of the parties relating to the disposition or dissipation of assets, and each spouse's earning ability. Roetter, 182 N.E.3d at 227 (citing I.C. § 31-15-75(1)-(5)). "This statutory list is nonexclusive, and no single factor controls the division of property." Id. (internal citations omitted). For example, "[a] shortlived marriage may rebut the presumption favoring equal division, especially if one party brought substantially more property into the marriage." Roetter, 182 N.E.3d at 227 (citing Houchens v. Boschert, 758 N.E.2d 585, 591 (Ind.Ct.App. 2001), trans. denied). "So long as it expressly considers all assets and liabilities, and so long as it offers sufficient findings to rebut the presumptive equal division, a trial court need not follow a rigid, technical formula in dividing the marital estate and we will assume that it applied the law correctly." Id. at 229 (citing Luttrell v. Luttrell, 994 N.E.2d 298, 305 (Ind.Ct.App. 2013), trans. denied). 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, 229 N.E.3d at 564 (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.
[¶15] Here, Wife argues that the trial court erred when it awarded 82 percent of the marital estate to Husband. In support, Wife highlights the following three factors: (1) Wife secured financing and supplied the down payment for the purchase of the former marital residence; (2) Wife's medical condition "had detrimental effects on her economic stability and financial independence;" and (3) Husband's earning capacity, although lower than previously, was still significantly greater than Wife's. Appellant's Br. at 12-16. We do not find Wife's arguments persuasive.
[¶16] Here, the Record on Appeal includes evidence that supports the trial court's findings that the parties' marriage was short-term, lasting less than two years; Husband brought the "lion['s] share" of the marital assets into the marriage; and Husband's earning capacity significantly exceeded Wife's, although the earning capacity of both Husband and Wife was much less at the time of dissolution than on the date of marriage. The evidence also supports the trial court's findings regarding each party's financial contributions to the marriage, namely, that Wife paid $11,665.70 as a down payment on the marital residence but Husband had paid her back in $12,000 cash; Husband paid the majority of the family expenses during the marriage; Wife kept her funds segregated during the marriage; Wife demonstrated paying only $2,200 financial assistance toward marital expenses; and, following the date of filing, Husband continued to cover expenses for Wife in the amount of $7,248.56.
[¶17] Significantly, the evidence supports that the parties' marriage was short-term. The trial court specifically noted that it had "considered the relevant factors, testimony, and evidence with respect to the division of the marital estate," Appellant's App. Vol. II at 10, which is demonstrated by the trial court's findings regarding the parties' respective contributions to the acquisition of the marital estate, the economic circumstances, the extent to which the property was acquired by each spouse before the marriage, the parties' respective economic circumstances on the date of the Decree, and the parties' respective earning capacities. Wife's request that this court reverse the trial court's division of marital estate would require us to reweigh the evidence in her favor, especially regarding her economic circumstances; this we cannot do. See Cooley, 229 N.E.3d at 564. Our "standard of review precludes us from substituting our judgment for that of the trial court." See Roetter, 182 N.E.3d at 228. As such, we hold that Wife has not shown the trial court erred in its division of the marital estate substantially in favor of Husband.
3. Wife Has Not Shown the Trial Court's Failure to Consider a Spousal Maintenance Award Was Error
[¶18] Finally, Wife contends the trial court erred when it "failed to consider awarding her spousal maintenance." Appellant's Br. at 20. Indiana Code section 31-15-71 authorizes a trial court to order maintenance in a final dissolution decree after making the findings required by Indiana Code section 31-15-7-2. To support such an award, the court must make the following findings regarding the spouse seeking maintenance:
(1) the spouse is "physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially affected," requiring maintenance "during the period of incapacity, subject to further order of the court;" or
(2) the spouse either "lacks sufficient property, including marital property apportioned to the spouse, to provide for the spouse's needs" and such spouse "is the custodian of a child whose physical or mental incapacity requires the custodian to forego employment."I.C. § 31-15-7-2.
[¶19] "A trial court's power to award spousal maintenance is wholly discretionary." Barton v. Barton, 47 N.E.3d 368, 375 (Ind.Ct.App. 2015) (citing Spivey v. Topper, 876 N.E.2d 781, 784 (Ind.Ct.App. 2007)), trans. denied. The spouse seeking maintenance has the burden of proving that he or she is entitled to maintenance." Lesley v. Lesley, 6 N.E.3d 963, 967 (Ind.Ct.App. 2014). "In determining the propriety of a spousal maintenance award, the ability of the [other spouse] to pay should also be made to appear." Barton, 47 N.E.3d at 377, trans. denied.
[¶20] We initially observe that Wife fails to cite to any evidence in the Record on Appeal to support her claim that she is entitled to spousal maintenance under Indiana Code section 31-15-7-2(1) or -2(2). Instead, the bulk of Wife's argument is that the "seriousness of Wife's illness and the effect it had on her ability to support herself was [sic] enough to trigger a maintenance analysis from the trial court." Appellant's Br. at 21. In other words, Wife asserts that the trial court was required to sua sponte entertain awarding Wife maintenance. We cannot agree.
[¶21] Wife has not shown that she ever made a request for maintenance in writing or otherwise. Wife's counsel made no opening statement or closing argument, and Wife does not show by citation to the transcript or elsewhere in the Record on Appeal that she requested a maintenance award. Wife argues that the trial court mistakenly believed a request for maintenance must be made to the court in writing and "erred" when the court did not consider whether a spousal maintenance award would be appropriate in this case. She argues that Husband and the trial court were well aware that maintenance was an issue at the final hearing because Husband's counsel raised the issue:
[Husband's counsel]: I'm going to briefly ask you this question because I anticipate that it's coming, but in the event that [Wife] asks for maintenance, are you in a position to pay any maintenance to her?
[Husband]: No.Tr. Vol. II at 29. As further evidence of the trial court's and Husband's awareness of the maintenance issue, Wife points out that Husband's counsel objected to Wife's direct examination testimony regarding the ongoing treatment for her medical condition on the ground that there was no request for maintenance pending. During the ensuing colloquy, the trial court agreed that there was no claim for maintenance but observed that such testimony could be relevant to economic circumstances:
THE COURT: Okay. I think it's-to the extent it's an objection.
I'll overrule the objection because I think it does go towards economic circumstances, but [Husband's counsel] is correct. The Court is not aware of [a] request for spousal maintenance on file. Unless you-
[WIFE'S COUNSEL]: I agree. May I continue?Id. at 78. On this record, in which Wife shows neither a written request for spousal maintenance or a verbal request-through her own testimony or otherwise-we cannot say that the trial court erred when it did not include any reference to maintenance in the Decree. To hold otherwise would require a trial court to anticipate all possible relief supportable by the evidence and undertake the relevant analysis to determine whether such is appropriate even when a party did not request such relief. Such a rule would be unduly burdensome on trial courts and undermine the rule requiring counsel to zealously advocate for the client, rendering the trial court an advocate.
Wife also points to the summons served on her in this dissolution matter. The summons provides, in relevant part: "If you take no action in this case after receipt of this summons, the Court can grant a Dissolution of Marriage or make a determination regarding any of the following: paternity, child custody, child support, maintenance, visitation, property division (real or personal) and any other distribution of assets and debts." Appellant's App. Vol. II at 16. The purpose of the summons was to give Wife notice of the types of relief available in the dissolution action and the consequences of failure to respond and to allow the trial court to acquire jurisdiction over the person served. See T.R. 4 ("The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appears, or who is subjected to the power of the court under any other law."). The summons issued by Husband and served on Wife did not constitute an affirmative request for any of the relief available in the dissolution action.
Conclusion
[¶22] The trial court did not abuse its discretion when it failed to include Husband's stock options in the marital pot subject to division or when it divided the marital estate substantially in favor of Husband. In addition, Wife has not shown that the trial court erred when it failed to consider whether to award her maintenance, an award she made to affirmative request to receive. As such, we affirm on all issues raised in Wife's appeal.
[¶23] Affirmed.
Altice, C.J., and Bradford, J., concur.